
    HURON v. STATE.
    No. 13612.
    Court of Criminal Appeals of Texas.
    May 28, 1930.
    Rehearing Granted June 27, 1930.
    Anderson & Jones, of San Angelo, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Unlawfully transporting intoxicating liquor is the offense; punishment fixed at confinement in the penitentiary for one year.

The evidence before the trial court is not brought up for review. There are several bills of exceptions. The appellant was indicted on the 16th day of January, 1929. The date of the offense was laid as of the 10th of January. The trial took place in February, 1930.

The bills of exceptions rdlate to the reception in evidence of testimony over the objection of the appellant. Ordinarily in the absence of the evidence that was before the court, bills of exceptions of the nature mentioned cannot be appraised.

Bill No. 1 complains that there was found upon the premises of the appellant in October, 1929, a quantity of mash and whis-ky. So far as revealed by the bill, this may or may not have been relevant and material to some of the issues involved. Bills Nos. 2 and 3 in their effect are similar to bill No. 1.

Bill No. 4 reflects the complaint of the reception of evidence obtained through a 'search in the absence of a search warrant. The bill fails to show that there was no search warrant, and further discloses that the evidence was obtained through the search of an automobile. The bill also fails to show-that there was an absence of probable cause. Bill No. 5 relates to the same matter as bill No. 4.

The brief appears to have been made on the theory that there was a statement of facts, but, as above stated, there is none found in the record.

The judgment is affirmed.

On Motion for Rehearing.

The statement of facts in this case was filed properly with the clerk of the trial court, but was not sent here with the record on appeal, and was not therefore before us when the original opinion was written. By proper means the same has been sent up and is now here for consideration.

Considering the record in the light of said statement of facts, we think the learned trial judge was in error in the matters complained of in bills of exceptions Nos. 1, 2, and 3. The issue before the jury upon this trial was whether the appellant transported whis-ky unlawfully on January 10,1929, or whether he had it for medicinal purposes. He swore to the latter. A doctor corroborated him as to the illness of his family. It is difficult for us to see the pertinency of the proof of his possession of mash and whisky some ten months later, or that he was found guilty in a case in the federal court in October, 1929, nor the amount of penalty then inflicted. These facts would necessarily be of much prejudice to the appellant in the eyes of the jury. We think the errors of sufficient gravity to call for a reversal of the judgment of conviction.

The motion for rehearing is granted, the order of affirmance ⅛ set aside, the judgment of the trial court is reversed, and the cause remanded.  