
    HUBBARD v. STATE.
    (No. 11388.)
    Court of Criminal Appeals of Texas.
    Feb. 29, 1928.
    Rehearing Denied April 4, 1928.
    I. Criminal law 171 (3)— District attorney’s remarks in argument regarding period of time between issue of alias capias not in evidence and accused’s árrest held not reversible error.
    In liquor prosecution, in which defendant’s counsel had argued that another had been convicted of same offense with which accused was charged, but that accused had not been tried for more than year after the other party’s conviction, district attorney’s remarks c.alling attention to fact that indictment was filed in December, 1925, but that alias capias showed' he had not been arrested until January, 192T, where alias capias was not in evidence, held '-not reversible error, where judge instructed jury to consider nothing but facts in evidence, and accused’s guilt appeared plain, and minimum penalty was awarded.
    On Motion for Rehearing.
    2. Intoxicating liquors @=>236(20) — Evidence held sufficient to sustain conviction for transporting liquor.
    In prosecution for transporting intoxicating liquor, evidence held sufficient to sustain conviction.
    Appeal from Criminal District Court, Travis County; James R. Hamilton, Judge.
    Jimmie Hubbard was convicted of transporting intoxicating liquor, and be appeals. Affirmed.
    Dickens & Dickens, of Austin, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for transporting intoxicating liquor; punishment being one year in the penitentiary.

The evidence produced by the state, we think, shows appellant’s guilt beyond question. He did not testify, and called no witness to combat the incriminating facts proven against him. This statement disposes of bills of exception 1 and 2, which challenge in different ways the sufficiency of the evidence. As qualified, bill of exception No. 3 shows no error.

Appellant objected to the argument of the district attorney wherein, he called attention to the fact that the indictment against appellant had been filed in December, 1925, but that an alias capias showed that he had not been arrested until January, 1927; the objection being that the alias capias was not in evidence, and that the remarks of the district attorney was an insinuation that appellant had been “dodging arrest.” In approving the bill, the learned trial judge explained that appellant’s counsel had argued that one Wade had been convicted of the same offense with which appellant was charged, but that appellant had not been tried for more than a year after .Wade’s conviction, and commented upon the “strange procedure.” It was in reply to such argument that the district attorney alluded to the alias capias. The learned trial judge further certifies that he instructed the jury that they were to consider nothing but the facts in evidence. Conceding that the district attorney should not have referred 'to a return on the alias capias — it not having been introduced in evidence — still we cannot regard the circumstance as calling for a reversal. Appellant's guilt appears plain, and the minimum penalty only was awarded. -Hence injury resulting from the incident .seems unlikely.

- The court was not in error in refusing a special charge on accomplice testimony. The evidence does not appear to raise such an issue, especially in view of article 670, P. C.

The judgment is affirmed.

On Motion for Rehearing.

DATTIMORE, J.

Responding to appellant’s courteous motion for rehearing, we have again examined the record with a view of determining the sufficiency of the testimony .to show appellant guilty of transporting intoxicating liquor. The state witness testified positively that appellant came to her house at night with a grip which he asked to leave there for a while. The next morning witness looked in the grip, and it contained whisky. During the day appellant came and removed part of the liquor, and later he removed it all. It will thus be seen that he was guilty of transporting both ways.

Being unable to agree with the proposition that the evidence does not support the verdict, the motion for rehearing will be overruled. 
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