
    Tom Colbert v. State
    No. 31,363.
    January 13, 1960
    Motion for Rehearing Overruled February 17, 1960
    
      
      Richard D. Bird, Childress, for appellant.
    
      Leon Douglas, State’s Attorney, Austin, for the state.
   BELCHER, Judge.

The conviction is for the possession of whiskey for the purpose of sale in a dry area; the punishment, a fine of $450.

It was stipulated that Cottle County was a dry area.

The appellant was present while the officers executed a search warrant for his residence which resulted in their finding therein of one pint of whisky, four one-half pints of whisky and one partially filled pint of whisky.

Appellant did not testify or offer any testimony in his behalf.

Appellant insists that the trial court erred in overruling his application for a change of venue.

The application for change of venue and the formal bills presenting appellant’s claim of error in the overruling of such application fail to show that this case comes within the provisions of Art. 563, C.C.P., the only statute authorizing a change of venue in misdemeanor cases.

Complaint is made of the overruling of a motion for a new trial in the absence of the appellant.

The motion was filed after the appellant had given notice of appeal and had entered into a recognizance. In the absence of the withdrawal of the notice of appeal, the trial court was without jurisdiction to consider the motion. Art. 828, C.C.P.

The evidence is sufficient to support the conviction and no error appearing the judgment is affirmed.

Opinion approved by the Court.  