
    WILLINGHAM v. STATE.
    (No. 7795.)
    (Court of Criminal Appeals of Texas.
    June 13, 1923.)
    1. Criminal law <§=>1036(2) — Improper cross-examination of defendant’s wife not available as fundamental error without objection at trial.
    Improper cross-examination of the wife of a defendant is not available as fundamental error without objection made at trial.
    2. Criminal law <§=>945(1) — Overruling a motion for new trial for .newly discovered evi- ' dence held proper.
    In a prosecution for transporting intoxicating liquor, wherein defendant claimed he had transported the owner and packages containing the liquor, and, fearing apprehension, the owner fled, where newly discovered evidence was that a witness had seen a man enter defendant’s car and put some packages in it, overruling motion for new trial was not error.
    Appeal from District Court, Grayson County; E. E. Wilcox, Judge.
    Ollie Willingham was convicted of transporting intoxicating liquor, and he appeals.
    Affirmed.
    B. F. Gafliord, of Sherman, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State. *
   MORROW, P. J.

The offense is transporting intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

Appellant and a lady were seen by the State’s witnesses traveling in an automobile, going north and crossing the Red River into Oklahoma. They were later seen coming from Oklahoma into Texas. The car was stopped and searched, and in it were found 12 gallons of corn whisky, also a pistol. The explanation made by the appellant and his witnesses was that packages containing whisky were put into the car by another person without their knowledge of its contents, and that appellant had received $2 for taking a man and the packages to Pottsboro; that on the approach of the officers this man fled. The wife of the appellant, in his behalf, testified in detail to these defensive matters.

The bill sets out in question and answer form the cross-examination of the wife. We have failed to observe anything contained in it other than that which is germane to the direct examination. No objection was made to the cross-examination, but, relying upon the case of Brock v. State, 44 Tex. Cr. R. 335, 71 S. W. 20, 60 L. R. A. 465, 100 Am. St. Rep. 859, appellant presents a bill complaining of it as fundamental error. As stated above, we find in the bill no transgression of the legitimate cross-examination of the wife. Moreover, the rule stated in Brock v. State, supra, to the effect that the improper cross-examination of the wife is available as fundamental erro'r without an objection made on the trial, has not been adhered to. The instant case, moreover, is distinguished from the Brock Case, supra, in that the court was therein controlled by the rule pertaining to confidential communications. The inquiries in the main are addressed to the evidence of the appellant’s wife touching the placing of the whisky in the car by a stranger and his subsequent acts with reference thereto. This character of testimony comes under a different phase of the statute from that forbidding the disclosure of confidential communications. That part of the Brock Case permitting the accused to introduce his wife in evidence, to remain silent during her cross-examination, and to secure a reversal of the case in the event any part of the cross-examination impinges upon the rule forbidding the. use of the wife as a witness against the husband, was discarded by this court in an undivided opinion in Ward’s Case, 70 Tex. Cr. R. 393 (see page 407), 159 S. W. 272. That part of the Brock Case which affirms the duty of the court to protect the accused against improper cross-examination of his wife has been sustained, but only on condition that he interpose an objection at the time. See Bennett v. State, 80 Tex. Cr. R. 652, 194 S. W. 145, 149; Norwood v. State, 80 Tex. Cr. R. 552, 192 S. W. 249; Roberts v. State, 74 Tex. Cr. R. 150, 168 S. W. 101 (see page 111); Eads v. State, 74 Tex. Cr. R. 628, 170 S. W. 145; Villafranco v. State, 84 Tex. Cr. R. 195, 206 S. W. 357; Lovett v. State, 87 Tex. Cr. R. 548, 223 S. W. 210; Brown v. State, 88 Tex. Cr. R. 55, 224 S. W. 1105; Bell v. State, 88 Tex. Cr. R. 64, 224 S. W. 1108. See, also, Vernon’s Tex. Crim. Stat. 1922 Supp. vol. 2, arts. 794, 795, C. C. P., and annotations.

On the motion for new trial a witness was produced who testified that he saw a man enter appellant’s car and put some packages or boxes in it. We are not prepared to say that the trial judge abused the discretion which the law vests in him touching newly discovered evidence in overruling the motion for new trial. The punishment is fixed at a minimum, and, in deciding that the new evidence would not probably have produced a different result, so far as the guilt or innocence is concerned, the conclusion of the trial court is apparently not unsound. Appellant was engaged in operating a service car for hire. According to his 'theory, he contracted with a man whom he and his wife described to transport certain packages which the man delivered upon the bank of the river. The packages found upon the arrest of appellant and in his automobile contained 12 gallons of whisky. Whether the whisky belonged to him or to another was unimportant. The offense was transporting it; that is, hauling it in his automobile from one locality to another. We find nothing in the alleged newly discovered evidence to indicate that appellant was ignorant of the contents of the packages. The nature of the transaction is such that in our judgment the trial court was right in concluding that the new evidence would not have produced a different result.

The judgment is affirmed. 
      <§s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     