
    MORTON v. STATE.
    (No. 9376.)
    (Court of Criminal Appeals of Texas.
    June 24, 1925.
    On Motion for Rehearing Oct. 21, 1925.)
    1. Criminal law @=l 131 (7) — Appeal dismissed where offense charged is not described in bond, but reinstated on filing and forwarding of proper bond.
    Where appeal bond fails to describe offense charged, appellate court must dismiss appeal, but .will reinstate it on filing of new bond in compliance with Code Cr. Proe. 1911, .art. 923, and forwarding of duly certified copy within time allowed, failing in which order will become final.
    On Motion for Rehearing.
    2. intoxicating liquors @=>239(4)— Charge that whisky, if put in defendant’s car by another, would be in' latter’s possession held properly refused as abstract.
    In trial for possessing intoxicating liquor, defendant’s charge that whisky, if put in defendant’s automobile by another, would be in latter’s possession, though defendant knew of such fact, ■held, properly refused, where defendant contended that he had no knowledge that whisky was in car, and court’s charge pertinently applied law to facts in evidence.
    .3. Intoxicating liquors @=139 — One knowing liquor was in car may become chargeable with possession by subsequent conduct, though another placed it there.
    One knowing that liquor was in his.automobile, though' another placed it there, may become chargeable with possession thereof by his subsequent conduct with reference to it.
    Appeal from District Court, Bowie County; •Hugh Carney, Judge.
    J. W. Morton was convicted of possessing intoxicating'liquor, and he appeals.
    Affirmed.
    Geo. W. Johnson, of New Boston, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The conviction is for the unlawful possession of intoxicating liquor ; punishment fixed at confinement in the penitentiary for a period of four years.

The appeal bond is insufficient to give this court jurisdiction to pass upon the merits of the case in that the bond fails to describe the offense of which the appellant stands charged. We have therefore no choice but to dismiss the appeal.

Permission, is granted the appellant to file in the trial court a new bond in compliance with article 923, C. C. P., and to forward to this court a duly certified copy thereof within 15 days from this date, whereupon the dismissal will be set aside and the case reinstated; otherwise the order of dismissal will become final. See article 923, C. C. P.

On 'Motion for Rehearing.

HAWKINS, J.

Conviction is for the unlawful possession of intoxicating liquor; punishment being fixed at confinement in the penitentiary for a period of four 'years.

The appeal was dismissed at a former term of court because the appeal bond was insufficient. A proper bond has been filed within the time allowed by the order of dismissal; that order is set aside, the appeal reinstated, and the case will now have consideration upon its merits.

On the day appellant was arrested he was sitting in the front seat of his automobile which was parked near a “creosoting plant.” When the officers informed him they desired to search his car to ascertain if whisky was in it he declined to permit the search in the absence of a warrant authorizing it. According to the officers’ testimony, when they told him they intended to make the search appellant placed his hand upon tbe back seat of the car and told them he had whisky there, but declined to permit the search to be made. The officers found under the back seat of the car 12 quarts of whisky in quart fruit jars, and a vacant place indicating that another quart had been taken out. Upon the trial appellant denied' telling the officers he had whisky under the back seat of his car; he also denied any knowledge of its presence. He claims that while repairing a puncture in the town, not far from the “creosoting plant,” a man by themame of Palford said he wanted to borrow his car to drive out in the country for a short time; that after the puncture was repaired he let Palford have his ear; that he was gone some 30 minutes; that when Palford returned with the car he went with appellant to the “creosoting plant”; that as the officers approached the car Pal-ford left, saying he would be back in a few minutes, but that he disappeared, and appellant had not seen him since that time, and had been unable to learn his whereabouts. Witnesses who claimed to have assisted appellant in repairing the puncture testified that they secured the tools for that purpose from under the back seat; that no whisky was in the car then. They also supported appellant’s testimony to the extent that some man with whom they were not acquainted borrowed appellant’s ear and was gone With it for about 30 minutes, and that when he returned appellant got in the ear with him, and {lie two then left together.

Upon the defensive theory the court instructed the jury if they believed Palford borrowed appellant’s automobile and put the whisky under the back seat, and appellant did not know it was there, or if they had a reasonable doubt as to whether such was the fact, they would acquit appellant; or if they believed any one other than Palford put the whisky under the back seat, and appellant did not know of its presence, or if they had a reasonable doubt thereof, they should acquit. An exception was presented to the charge, because it did not contain a definition of “possession.” If there was basis for such objection at the time it was urged the charge must have been corrected in response thereto, because, as shown by the record, the charge contains such definition which is in accord with the former announcements of this court upon the subject.

Appellant requested a special charge instructing the jury if they believed Palford put the whisky in the car or some one put it in the car for him then the whisky would be in the possession of Palford and not in the possession of appellant, even if appellant knew of these facts. Complaint is directed at the refusal of this charge. The charge given on this subject was a pertinent application of the law to the facts made by the testimony. It was appellant’s contention that he had no knowledge the whisky was in the ear, but that Palford had placed it there or had it placed there without appellant’s knowledge or consent. The requested charge was not pertinent upon the issue as raised by the evidence, and does not necessarily contain a correct statement of the law. Although some one other than appellant may have placed the liquor in the car, yet if appellant knew it was there his subsequent conduct with reference to it might be such as to charge him with possession of it.

Finding no error in the, record, the judgment is affirmed. 
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