
    AMES v. STATE.
    (No. 8704.)
    (Court of Criminal Appeals of Texas.
    June 24, 1925.
    Rehearing Denied Dec. 2, 1925.)
    1. Criminal law &wkey;>! 168(1)— No error in refusal to direct acquittal as to certain count, where eliminated by court.
    No possible error resulted by reason of court’s refusal to charge jury to find defendant not guilty in second count of indictment, where court in charge to jury eliminated such count.
    2. Criminal law <&wkey;l 144(14) — Court’s refusal to give special charge presumed correct, where not shown to have been presented prior to reading of general charge and no exception noted to refusal to give it.
    In prosecution for transporting liquor, appellate court will presume that refusal to define term “transport” was correct, where special charge was not shown to have been presented prior to reading of general charge, and no exception was noted to refusal to give such charge.
    3. Criminal law <&wkey;80S(3) — Failure to couple charge on. reasonable doubt with particular charge held not error.
    Failure of court to couple charge on reasonable doubt with a particular charge was not error, where court in main charge, and also in connection with charge on circumstantial evidence, charged on reasonable doubt.
    4. Criminal law <&wkey;H84 — Sentence not conforming with Indeterminate Sentence Law reformed on appeal.
    Where court in sentencing defendant, failed to follow law relative to indeterminate sentences (Acts 33d Leg. [1913] Ex. Sess. c. 5), such sentence will be reformed on appeal.
    . On Motion for Rehearing.
    5. Intoxicating liquors <&wkey;236(20) — Evidence held to sustain conviction.
    Evidence lielcS to sustain conviction for transporting intoxicating liquors.
    6. Criminal law <&wkey;i 171 (I) — State’s attorney’s argument held not to require reversal.
    Statements of state’s attorney that if man lived in one room of hotel he could not take liquor out of his room to another room, as it would be transporting, and that jury ought to be careful and not turn a criminal loose on society, held not to require reversal, where evidence showed that defendant transported whisky on the street.
    Commissioners’ Decision.
    Appeal from District Court, Eastland County ; Geo. L. Davenport, Judge.
    Frank Ames was convicted of transporting intoxicating liquor, and appeals.
    Affirmed.
    Burkett, Orr & McCarty, of Eastland, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

The appellant was indicted and convicted in the district court of East-lánd county for transporting intoxicating liquor and his punishment assessed at three years in the penitentiary.

We find in the record four hills of exception complaining of the action of the trial court as therein set out.

Bills 1 and 2 complain of the action of the court in refusing to instruct the jury to return a verdict of not guilty. We are of the opinion that the court committed no error in refusing said special charges therein contained.

Bill of exceptions No. 3 complains of the action of the court in refusing to give to the jury defendant’s special charge in effect instructing the jury to find the defendant not guilty on the second count of the indictment. The court in his charge to the jury eliminated the second count in the indictment, and there could be no possible error in his refusing this special charge.

Bill of exceptions No. 4 complains of the argument of' the state’s attorney in stating that if a man lives in one room of a hotel he could not take liquor out of his room to another room as same would be transporting, and the jury ought to be careful and not turn a criminal loose on society, and that it was the duty of the court to charge on circumstantial evidence if there was the slightest circumstantial evidence in the testimony. This bill is very meager and does not state the circumstances or connection in which said remarks were made, and as presented does not show any error in. the ruling of the court thereon.

The appellant also complains in his brief at the refusal of the court to define the term “transport.” Special charge No. 1 requested by the defendant and refused by the court embraces a definition of what the term means, but said special charge does not show to have been presented to the court prior to the reading of the general charge and no exception noted or shown to the refusal of the court in failing to give said charge, and in this condition we are forced to presume that the court’s action in refusing isame was correct.

Appellant complains of the action of the court in overruling his motion for a new trial because it is alleged and shown that the juror Holmes was not a resident of Eastland county at the time he served as a juror in this cause. We are unable to agree with the contention made in this particular, nor conclude-that the court was in error in overruling said motion. We think the cases cited by the state, to wit: Leeper v. State, 29 Tex. App. 63, 14 S. W. 398; Watson v. State, 82 Tex. Cr. R. 462, 199 S. W. 1098; Squyres v. State, 92 Tex. Cr. R. 160, 242 S. W. 1024-are in point and hold against the contention of the appellant herein.

The appellant urges complaint against the fifth paragraph of the court’s charge because it is alleged that the court should have charged the jury in connection therewith that, if they had a reasonable doubt as to whether or not the defendant transported the whisky in question, they should acquit him. The court in his main charge charged on reasonable doubt and also charged again on reasonable doubt in connection with his charge on circumstantial evidence, and we are of the opinion that there was no error committed by the court in the particular complained of.

Error is also lodged against the action of the court in not sustaining the motion to quash the jury panel because it is alleged that there was error shown pertaining to the filling of the jury wheel. This identical point was before this court in the ease of Hart v. State, 276 S. W. 233, and was decided adversely to the appellant’s contention on May 27, 1925, yet [officially] unreported, and we refer to that case for the court’s holding on this point in question, and the authorities therein cited.

After a careful examination of the record, we fail to find any error committed by the trial court and are of the opinion that this case should be affirmed. We notice in the sentence of the appellant in this case that the court failed to follow the law relative to indeterminate sentences (Acts 33d Leg. [1913] Ex Sess. c. 5) and stated that the appellant should be confined in the penitentiary for a term of “not less than three nor more than three years.” We therefore reform said sentence and the defendant is committed to the penitentiary for a term.of not less than one nor more than three years.

The judgment and sentence of the lower court is therefore reformed and affirmed, as herein stated.

PER CURIAM.

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.

The motion for rehearing is brief. It simply states that this court committed error in overruling the bills of exception.

The evidence in the case, coming from the state, is quite sufficient to support the verdict. There was direct evidence that the appellant had upon his person two bottles of whisky; that he carried them upon the street and deposited one of them under a trash can, and apparently was in the act of depositing the other bottle at a different place in an alley when he was apprehended by an officer who was watching him. There were circumstances pointing to the possession of other whisky in an automobile. Appellant testified that he had no whisky and did not ride in an automobile. '

The action of the court in refusing to instruct a verdict for the appellant is well supported by the evidence. The. effect of the court’s charge, as indicated in the original opinion, was to instruct an acquittal upon the second count of the indictment. It was eliminated froip. the consideration of the jury.

As applied to the evidence, a synopsis of which is given above, the remarks of counsel, of which complaint is made in hill of exceptions No. 4, are not of a nature to require a reversal of the judgment. The facts developed, as stated above, are sufficient to show that the appellant transported whisky upon the street, and that he did not simply move it from one room in a hotel to another, ¿s mentioned in the illustration to which the argument relates.

The other questions presented by the record are discussed and, we think, fully and correctly disposed of in the original opinion.

The motion is overruled. 
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