
    CORTINAS v. STATE.
    (No. 10777.)
    Court of Criminal Appeals of Texas.
    March 16, 1927.
    Rehearing Denied May 11, 1927.
    1. Intoxicating liquors (§=>238(1) — In prosecution for transporting liquor, question of defendant’s knowledge held for jury.
    In prosecution for transporting liquor, in which defendant claimed he did not know there was whisky in car, question of defendant’s guilt helé for jury.
    On Motion for Rehearing.
    2. Criminal law <@=>l 158(3) — Trial court’s finding on conflicting evidence as to whether juror was impartial and whether extraneous matters were brought to jury in retirement held conclusive.
    Where evidence was conflicting as to whether juror was impartial and whether extraneous prejudicial matters were brought to jury in retirement, trial court’s finding adverse to defendant is binding on appeal.
    3. Criminal law <@=>957(I) — Juror’s statement that he did not give credit to certain witnesses held not to Warrant new trial.
    Mere fact that juror stated he did not give credit to certain witnesses will not warrant new trial in prosecution for transporting liquor, since credibility of witnesses is definitely placed within scope of jurors’ decision by statute.
    4. Criminal law <§=>798'/2 — That trial court gave forms of verdict in prosecution for transporting liquor held not error.
    In prosecution for transporting liquor, it was not error for trial court to give forms of verdict to jury, in absence of showing suggesting prejudice to accused.
    Commissioners’ Decision.
    Appeal from District Court, Nacogdoches County; C. A. Hodges, Judge.
    J. G. Cortinas was convicted of unlawfully transporting liquor, and he appeals.
    Affirmed.
    S.M. Adams and R. A. McAlister, both of Nacogdoches, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   BETHEA, J.

The appellant was convicted of unlawfully transporting intoxicating liquor, and his punishment assessed at one year in the state penitentiary. s

The appellant and another Mexican were arrested by the sheriff and his deputy while driving an automobile along the public road near the town of Nacogdoches. The ear was stopped by the officers, and the evidence shows that the appellant and his companion threw some of the whisky out of the car, breaking the jug and attempting to destroy the whisky. Appellant and his companion were arrested and taken to the jail. After they were locked up, a closer examination was made of the car, and a gallon of whisky was found.

The theory of the defense was that, while appellant was walking along the public road going toward the town of Nacogdoches, his companion took him into his car, and that appellant did not know that there was any whisky in the car at. the time he was arrested.

Appellant, in his bill of exception No. M, claims that the jury received additional evidence after retiring to consider their verdict. The evidence introduced on the motion for a new trial is fully set out in said bill of exception. The learned trial judge having heard the testimony of each of the jurors and having overruled the motion for a new trial, we are of the opinion that he was not in error.

By his bill of exception No. O, the appellant complains of the court giving to the jury two forms of verdicts of guilty and only one form on which they could acquit him. This bill, as qualified by the learned trial judge, presents no error.

The appellant, by his bill of exception No. 2, complains ef the court not permitting the appellant to testify as to what his companion, Lee Oasas, told him in regard to the whisky on the next day after the two had been arrested. This bill, when considered in the light of the trial court’s qualifications, presents no error.

The appellant excepted to the court’s charge, for the reason that the evidence was insufficient to sustain a conviction, and requested that his special charge No. 1 be given. Special charge No. 1 requested the court to instruct the jury to return a verdict of not guilty. Under the facts and circumstances of this case, we think it was a question of fact that should have been submitted to the fury, and the court committed no error in refusing to give this special charge.

There being no errors in the record, the judgment of the trial court is affirmed.

PER OURIAM. The foregoing opinion of the Commission of Appeals has been examined by 'the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

Appellant insists that the evidence developed upon the motion for a new trial supports his averment that in its retirement there was brought to the jury extraneous matters prejudicial to the appellant and that it was also revealed that one of the jurors was not impartial. In the motion it is claimed that, while the members of the jury were equally divided touching the guilt or innocence of the accused, juror Lang made the following remarks:

“That all the damn Mexicans made whisky, and that, if they had brought in every Mexican woman from the river to Nacogdoches, that they had seen the defendant go by their house afoot about sundown, and that, if the jury turned the defendant loose, he would do like all the rest of the damn Mexicans, go right back to bootlegging.”

The court heard testimony from all of the jurors who sat in the case. Two or three of them gave testimony in whole or in part supporting the averment mentioned. Others either denied the truth of the averment or stated that the remarks, if made, were not made in their hearing. Lang testified, categorically denying the use of the language mentioned find also denying hearing any other juror make such expressions. He admitted that he did state that he “did not give the Mexican witnesses much belief”; 'that he did not pay much attention to the story of the Mexican woman there and did not give it much credibility. It seems manifest that the truth of the averment in the motion was a controverted question; that is, the evidence was conflicting touching its truth. Under such conditions, the finding of the trial court is binding here. See Ballew v. State, 97 Tex. Cr. R. 325, 260 S. W. 1045; Watson v. State, 82 Tex. Cr. R. 305, 199 S. W. 1113; Reese v. State, 87 Tex. Cr. R. 245, 220 S. W. 1096; Barnard v. State, 87 Tex. Cr. R. 365, 221 S. W. 293; Kirby v. State, 96 Tex. Cr. R. 590, 258 S. W. 822; Dyer v. State (Tex. Cr. App.) 283 S. W. 820; Henderson v. State, 104 Tex. Cr. R. 495, 283 S. W. 497. The mere fact that the juror stated that he did not give credit to the Mexican witnesses would not warrant a new trial. It was merely the estimate which the juror placed upon the credibility of the witnesses, a matter which the statute places definitely within the scope of the jurors’ decision. See Honea v. State, 103 Tex. Cr. R. 242, 280 S. W. 819.

The fact that the trial court gave forms of verdict, in the absence of something in their nature or some showing which would suggest prejudice to the accused, none of which appears in the present case, there is no just ground for complaint. See Smith v. State, 103 Tex. Cr. R. 103, 280 S. W. 200; Hickox v. State, 95 Tex. Cr. R. 173, 253 S. W. 823.

The motion is overruled. 
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