
    WHEELER v. STATE.
    (No. 8254.)
    (Court of Criminal Appeals of Texas.
    April 30, 1924.)
    1. Intoxicating liquors <&wkey;-238(2) — Question . of defendant’s guilt held properly submitted on theory he was principal in offense with another.
    In prosecution for transporting liquor, where defendant and another when arrested were carrying liquor and a shotgun, though the state’s witness was unable to say which carried the gun and which the liquor, but where both acted together in resisting arrest, held, court properly submitted issue on theory that they were acting together as principals in offense.
    2. Intoxicating liquors <&wkey;>236(20) — Evidence held to sustain conviction for transporting.
    Evidence held to sustain conviction for transporting.
    3. Criminal law <§=»1090(12) — Alleged misconduct of jury held not reviewabie without the evidence thereof.
    Misconduct of jury cannot be reviewed where no bill of exception or statement of facts is preserved showing evidence which the judgment recites was heard on motion for new trial.
    «&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    , Appeal from District Court, Anderson County; W. R. Bishop, Judge.
    James Wheeler was convicted of transporting intoxicating liquors, and he appeals.
    Affirmed.
    R. M, Johnson and P. S. Colley, Jr., both of Palestine, 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 offense is the unlawful transportation of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

A distillery was located by one of the state’s witnesses and watched by him for a number of days. It was thoroughly equipped and supplied with mash. The witness, after observing it for several days, by appointment, informed the officers when the cooking was begun. Two officers and the witness mentioned stopped their car some two miles distant, and when they got near to the still they observed the appellant and Fletcher leaving it. One of them had a sack on his shoulder and a keg in his hand, while the other carried a shotgun. Which had the keg and which had the gun the witness was unable to state. One of the officers commanded them to stop. They wheeled around and started away when a gunshot was fired over their heads by one of the officers. Appellant and his companion dropped to the ground and returned the fire, wounding one of the officers. After several shots had been fired by the officers the appellant and his companion agreed to surrender, and were arrested. In their possession were found a two-gallon keg of whisky and three half-gallon fruit jars of the same article. The fruit jars were in the sack. The shotgun was also found in their possession.

The sufficiency of the evidence is assailed upon tlie idea that the state was bound to prove which of the parties was carrying the whisky and which was carrying the gun. The ease was submitted to the jury upon the theory that they were acting together, and were principals in transporting the whisky. In our judgment the court properly submitted this issue, and the evidence supports the verdict.

No testimony was offered by the appellant except that which bore upon the issue of the suspended sentence.

There is reference in the brief to some misconduct of the jury, but no bill of exceptions or- statement of facts is preserved showing evidence upon the motion for new trial, although the judgment recites that evidence was heard. See Cade v. State (Tex. Cr. App.) 258 S. W. 484; Harcrow v. State (No. 8069) 201 S. W. 1046. recently decided.

The judginent is affirmed.  