
    John Noble v. The State.
    No. 8474.
    Delivered June 18, 1924.
    Rehearing denied December 10, 1924.
    1. —Transporting Intoxicating Liquor — New Trial — Misconduct of Jury — How Shown.
    It was not error for the trial court to refuse appellant a new trial, on the ground of misconduct of the jury simply because the motion was sworn t.o by the appellant. No) affidavit was attached to the motion, nor was there any oral evidence heard by the court. The motion was not itself offered in evidence. The motion for a new trial, is but a pleading as has often been held by this court, and will be so considered by the trial judge, in the absence of a showing to the contrary.
    2. —Same—Bills of Exception — Insufficient.
    A bill of exception complaining of the admission of statements by the appellant, at the time he was stopped by the officers, and his car searched, merely presents the fact that objection was made to said statement, because at the time appellant was under arrest. It does- not state as a fact, nor does it establish as a fact that he was under arrest. There is nothing in the bill of exception from which we can determine the soundness of the objection.
    3. - — Same—Charge of the Court — Properly Refused.
    The trial court properly refused to • give a 'Special charge requested by the appellant, that he had the right to. transport the liquor for medicinal purposes for the use of his family, said issue having been clearly presented in the main charge.
    4. —Same—Evidence—Rebuttal—Scope of.
    Appellant having asserted that he was transporting the liquor for medicinal purposes for- use as a medicine by his wife, the state was- entitled in rebutting the proposition to show that appellant was drinking at and before the time of his arrest.
    Appeal from the District Court of Hall County. Tried below before • the Hon. R. D. Templeton, Judge.
    Appeal from a conviction of transporting intoxicating liquor; penalty, one year and six months in the penitentiary.
    
      Fires & Williams, for appellant.
    
      Tom Garrard, State’s Attorney, and Grover C. Morris, Assistant State’s Attorney, for the State.
   LATTIMORE, Judge.

— Appellant was convicted in the District Court of Hall County of transporting intoxicating liquor, and his punishment fixed at one year and six months in the penitentiary.

It appears from the testimony that about the 26th of August, 1922, appellant was arrested on a road from Lalceview to Memphis and that in his car he had a half gallon jar full of corn whisky and a, bottle spoken of as a quart bottle, about two-thirds full of the same stuff. Appellant lived about seven or eight miles west from the town of Lalceview in Hall County but at the time of his arrest was several miles east of Lalceview and going east. He had been seen in and around the town of Lalceview several times before he left going to Memphis. The jar of whisky was rolled up in a tow sack. Another witness testified that appellant told him that he was going to Memphis. At the time of his arrest appellant had been drinking. The defensive theory was that the liquor was being transported for use for medicinal purposes by appellant’s wife. He testified to this himself. He also testified that it was election day and an election, was being held in various voting boxes in the county and that he was on his way to Memphis with one Doster whom he was bringing to Memphis and they were about six miles east of Lalceview at the time the officers arrested appellant. On rebuttal the State witnesses testified that both Noble and Doster appeared to have been drinking at the time of the arrest, and one witness testified that they had been drinking quite a lot. It was in testimony that appellant told the officer who arrested him that he was not treating him right, and when the officer took the cover off the whisky appellant asked him to let it alone and said that he would see him the next day and make it all right. There was another bottle in a car which was empty but smelled as if it had had whisky in it.

We deem it not erroneous for the learned trial judge U> refuse to give the peremptory instruction requested by the appellant. We do n-ot think it error -fo'r the court to decline to grant a new trial based on the ground of misconduct of the jury, simply because the motion for new trial was sworn to by the appellant. No affidavit was attached to the motion, nor was there any oral evidence heard by the court. The motion was not itself offered in evidence. The motion for new trial is but a pleading as has been often decided by this court and will be so considered by the trial judge, and that will be our attitude toward it in the absence of a showing to the contrary.

The complaint shown by bill of exceptions No. 3 of the reception evidence of a statement. made by appellant at the time he was stopped by the officer and his car searched, merely presents the fact that objection was made to said statement because at the time appellant was under arrest. The mere statement of a ground of objection is not tantamount to the establishment of the fact thus stated as ground of objection. There is nothing in the bill of exceptions from which we can determine the soundness of the objection. The statement of the witness to which the objection was made is as follows :• “Mr. Noble told me at the time I stopped him that if I would let him alone he would see me tomorrow and make it all right.” This is not sufficient to enable this court to determine that the accused was under arrest' at the time.

■ There being no dispute of the fact in testimony that the liquor found in the possession of appellant and which he was transporting was whisky, the objection to the second paragraph of the court’s charge presents nothing of harmful consequence. In such case even if the court gave an erroneous definition of intoxicating liquor, it would be of no avail. The court told the jury in a paragraph of his charge that it was unlawful for any person directly or indirectly to transport within this State spirituous, vinous or malt liquors capable of producing intoxication., unless such person came under one of the exceptions under which same may be transported as herein stated. Further on in the charge the court told the jury that if they believed appellant transported the liquor, still if they further believed that he transported it for medicinal use alone; or if they had a reasonable doubt as to whether he transported it only for medicinal purposes, they should give him the benefit of the doubt and find him not guilty. We fail to perceive wherein this is not a correct presentation of the law.

The only claim of need or desire for use of the liquor as medicine was on behalf of appellant’s wife, it being asserted that she was in poor health and needed to use. the liquor as medicine. That the learned trial judge in the charge in presenting appellant’s right 'to an acquittal if he was transporting the liquor for medicinal purposes,— confined the right to transport it for such purposes or to such use only on the part of his wife, would not be error under the facts. Such-limitation might be erroneous upon a different state of facts, but under the testimony in this case it was not open to the objection that it was too restrictive. We do not think this special charge seeking to broaden the right of appellant to carry the liquor for medicinal purposes so as to make it include such use for his family, was called for by tire evidence; and we deem the refusal of the special charge not error. As -we have above stated, there was no testimony suggesting the need for whisky, or that the purpose of transporting same was for medicinal use by anyone except the wife of appellant.

Appellant asserting that he was transporting the liquor for medicinal purposes, for the use of same as medicine by his wife, the State was entitled, for whatever it was worth as rebutting the proposition, to show that appellant was drinking at and before the time of his arrest. Such evidence tended to rebut the proposition that he was transporting the liquor for one of the excepted purposes. It was not erroneous for the court to refuse special charge No. 4 which contained the proposition that appellant had the right to transport the liquor for his own personal use or for the use of his family-.

The evidence supporting the verdict, and finding no error in the record calling for a reversal, the judgment of the trial court will be ' affirmed.

Affirmed.

ON REHEARING.

LATTIMORE, Judge.

— Appellant insists that his motion for new trial based on misconduct of the jury, being sworn to and not controverted by the State, its refusal was error, and that we should ■ have so held in our original opinion.

There were thirteen grounds of the motion for new trial. Some complain of errors in the charge as given, others of the refusal of special charges, andeyet others of the omission of certain things from the main charge; others of the wrongful admission of testimony, and one ground of said motion asserts in general terms that the reputation of appellant was discussed by the jurors in their retirement, and the commission of other offenses attributed to him, no evidence having been introduced upon either issue, and that some of the jurors were influenced thereby in arriving at the penalty inflicted. From the jurat of the clerk who swore appellant to the motion it appears that he swore generally to the truth of all the allegations contained in said motion. We are not quite clear as to the exact contentions made by appellant, but if we understand them it is that having made his motion for new trial and sworn to it, the matters therein, stated should be taken as true in the absence of some traverse by the State. We are not cited to any authority so holding. As far as we know the cited cases of Stanley v. State, 16 Texas Crim. App., 400, and Richardson v. State, 12 S. W. Rep., 871, do not touch the issue here involved. In those cases applications for continuance had been made and overruled and the materiality of the absent testimony being disclosed during the trial of the cases, and the court below having refused motions for new trial apparently because the affidavits of the absent witnesses were not appended, this court held such action to be erroneous. There is no discussion of the legal aspect of a sworn motion for new trial in the case of Hollingsworth v. State, 250 S. W. Rep., 683, that not being an issue in the case. An inspection of the original record in that case now on file in the office of the clerk of this court discloses, however, that the motion for new trial was sworn to and that in addition there was appended an affidavit of a juror which discloses misconduct of the jury, and in the absence of any kind of controversy was held by us sufficient. Nor do we find aught in the dissenting opinion in Hicks v. State, 171 S. W. Rep., 768, which sustains appellant’s contention. The member of this court who wrote the dissent based it on the error of the court below in refusing to allow the accused to prove by eight jurors whom he had present when the motion for new trial was heard, the truth of his allegations in such motion that the verdict was decided by lot. The trial court based his rejection of the proffered testimony on the fact that the State had not controverted the motion, and a decision of the propriety of the action of the lower court in that case would seem settled by a reference to Art. 841, C. C. P., and subdiv. 3 of Art. 837, C. C. P.

If appellant’s contention was the rule which controlled, then every motion generally sworn to by the accused, as in this case, would necessarily prove itself as to all matters therein contained as much in one particular as another, and we would thus come to the practice of accepting as true all allegations regarding the charge, the refusal of special charges, the admission or rejection of testimony, provided such allegations -were generally sworn to. There is no such rule in this State.

In regard to the proposition that the motion is but a pleading, in Sharp v. State, 71 Texas Crim. Rep., 641, appears the following statement of the law:

“The motion for a new trial is but a pleading, together with the exhibits attached thereto, and when it is sought to raise therein an issue extrinsic the record, it must be sworn to, yet, swearing to it does not render it any the less a pleading in the case.”

Appellant’s contention that his motion sworn to is in the nature of a verified account, does not appeal to us. The truth of the allegations of the motion for new trial if of matters dehors the record, must be made to appear in some way by what may be characterized as testimony, which may be made by affidavit or oral evidence. As said by us in Odom v. State, 82 Texas Crim. Rep., 584:

“Matters of fact set up in motion for new trial, which matters of fact are not verified by bill of exceptions or statement of evidence filed during the term can not become the subject of review.”

The soundness and justice of this view in regard to matters set up dehors the record is apparent from an analysis of the contention of appellant in the case before us. His sworn motion as to what took place in the jury room, is as to appellant wholly hearsay at best. He was not there. He is only swearing to what some one else told him. It would still be of the same kind if he gave names and attempted to give exact quotations from what was said by the jurors to him. All this the trial court knew, and no affidavits being appended to the motion and no proferí being made of oral testimony in support of his pleading, the trial court correctly refused the motion.

The motion for rehearing will be overruled.

Overruled.  