
    RUNNELS v. STATE.
    (No. 9260.)
    (Court of Criminal Appeals of Texas.
    June 17, 1925.
    Rehearing Denied Oct. 21, 1925.)
    1. Intoxicating liquors &wkey;>236(l3) — Testimony that' liquor was whisky sufficient to show that it was intoxicating.
    Testimony,of deputy who took liquor from accused, and of district clerk who had possession at trial, that it was whisky held sufficient to show that it was intoxicating.
    2. Criminal law <&wkey; 1159(5) — Finding that accused was sane binding on appellate court.
    In prosecution for transporting intoxicating liquor, finding of jury on controverted issue of insanity, after being properly charged, held binding on appellate court.
    3. Criminal law <&wkey;857(l) — Celerity with which jury returns verdict immaterial.
    Contention that by reason of returning verdict so quickly jury failed to give proper consideration to issues involved has no force or merit.
    4. Criminal law <&wkey;938(3), 958(4) — New trial for newly discovered evidence properly refused where accused had knowledge before trial, and motion was not supported by affidavit of witness who would testify.
    New trial on ground of newly discovered evidence was properly refused, where it was shown that accused had knowledge before trial and motion was not supported by affidavit of •witness who would give new testimony or an accounting for absence of affidavit, notwithstanding that defense was insanity.
    5. indictment and information <&wkey;196(6) — Accused must call attention of court before pleading to mistake in name in indictment, otherwise it is waived.
    If accused’s name is improperly stated in indictment, it was his duty to call attention of court to.it before pleading, otherwise it was waived.
    On Motion for Rehearing.
    6. Criminal law c&wkey;938(l), 1156(3) — Motion for new trial for newly discovered evidence addressed to discretion of trial judge, and reviewable only for abuse.
    Motion of accused for new trial for newly discovered' evidence is addressed to sound discretion of trial judge, whose determination thereof will not be reversed except for abuse of discretion.
    Commissioners’ Decision.
    Appeal from District Court, Shelby County; Chas. L. Braehfield, Judge.
    Gilford Runnels was convicted of transporting intoxicating liquor, and he appeals.
    Affirmed.
    D. R. Taylor, of Center, 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 tried and convicted in the district court of Shelby county for transporting intoxicating liquor and his punishment assessed at one year in the penitentiary.

The testimony, briefly stated, in this case shows on the part of the state that the appellant and two or three other parties were in a truck and drove up to the town of Dreka where the deputy sheriff was, and that he, said deputy, went out to examine the truck, and appellant jumped off of the truck and started to run,’ and was overtaken by said deputy, and about a quart of whisky was recovered from him. The deputy testified that it was corn whisky, and that he turned it over to the district clerk, Sanford, and the witness, Sanford, for the state, testified that it was the same material that the deputy turned over to him, and that it was whisky, and in the same condition in which he received it. The appellant offered no testimony in rebuttal of the contention of the state with reference to the transportation, and, in fact offered no evidence at all, except as to his mental condition, and’ made the contention that the state’s evidence did not,show that the liquor taken from him was intoxicating. As above stated, both of said witnesses for the state testified that same was whisky. We think the testimony was amply sufficient to show that same was intoxicating. , In Branch’s Ann. P. G. § 1237, it is stated, “Proof that the liquor was alcohol or whisky is sufficient to show that it was an intoxicant,” citing Hambright v. State, 60 Tex. Cr. R. 253, 131 S. W. 1123, and many other authorities to the same effect.

The appellant in this case has .not favored us with a brief, but we find in the record eight bills of exception. In bill No. 1, complaint is made that the verdict is contrary to the law and the evidence, in that it is proved beyond a reasonable doubt that defendant was of unsound mind. It is admitted in said bill that the court fully charged the jury upon the question of insanity, but the complaint is lodged against the action of the jury in not sustaining said insanity plea of the defendant. It is true that the appellant introduced several nonexpert witnesses, who, after relating what they deemed was evidence of an .unsound mind upon the part of the appellant, stated that in their judgment the appellant was not of. sound mind. The state contented itself upon .this issue by proving the action of the defendant at the time of and just prior to his arrest, and attempting to conceal the whisky in question and to elude the officers, and by introducing a doctor and having him testify upon the hypothesis predicated upon the theory of the witnesses for the defense; this issue being an issue of fact left to the jury, and, the court properly charging the jury thereon, and their decision, against the contention of the appellant on a controverted issue would be binding op this court, and under such circumstances we would be unwarranted in in; terfering with the decision of the jury thereon.

In bill of exception No. 3 complaint is made to the court permitting the state’s witness Brittain to testify to having taken the whis-ky from the defendant, and delivering same to the clerk, and that it was the same identical whisky which he took from the defendant; and that said evidence failed to show that same was intoxicating. We are unable to agree with this contention, and, as above stated, said witness and the said district clerk both testified that it was whisky, and same was properly identified by both witnesses as being the same whisky taken from the defendant.

In bill of exception No. 5 complaint is made to the action of the jury in returning a verdict so quickly, contending that the jury by reason thereof failed to give proper consideration to the issues involved. We fail to see any force or merit in this contention, and know of no rule of practice or law requiring any specified time for the jury to reach a verdict.

In bill of exception No. 7 complaint is made to the action of the court in not granting a new trial, because it is alleged that new testimony had been discovered since the trial of the cause, to the qffeet that the defendant thought that he had to run just prior to and at the time of his arrest because the other parties in the truck told him to rim or he would be arrested and was handed the whisky by the other parties in the truck. The defendant made an affidavit to this effect after the verdict of guilty was returned, stating that he told his lawyer about this matter immediately after the verdict was reached. It is contended in said bill that, owing to the condition of the defendant’s mind, he did not make known these facts to his attorney until after the trial. The law in such matters is well established by this court to the effect that in order to obtain a new' trial on newly discovered evidence it must be shown that' the party was diligent, and not for the want of proper diligence that said testimony was not discovered prior to the trial, and that same upon another trial would likely result favorably to the defendant. In this instance, it is clearly shown that the defendant knew all of the alleged facts prior to the trial,' and made no effort to secure said evidence so far as the record discloses, and therefore does not come within the requirement of the statute in such cases. It is evidently sought to make an exception of this case to the general rule by urging that the reason same was not known by the attorney Was on account of the defendant’s mind. The jury having found appellant was sane, the rule would apply as to ordinary cases relative to newly discovered evidence.

In bill of exception No. 8, complaint is made because it is alleged that the defendant is indicted in the name Gilford “Runnels,” While the evidence shows that his wife spelled her name “Reynolds,” and said bill states that the “court erred in refusing to quash the indictment upon motion of defendant’s attorney.” We fail to find any motion in the record to quash the indictment because of a variance between the name alleged in the indictment and the proof, but the record discloses that said question was raised in the motion in arrest of judgment and in motion for new trial, so we assume that the appellant by the above statement in referring to motion to quash evidently was referring to motion in arrest of judgment and new trial. At any rate, the bill is not in shape to show any error in the ruling of the trial court. If the defendant’s name in the indictment was improperly stated, it was his duty to call the court’s attention thereto and have same corrected before he pleads to the indictment; otherwise it is waived. Branch’s Ann. P. C. § 466, citing Kinkead v. State, 61 Tex. Cr. R. 651, 135 S. W. 573.

We have examined the record carefully, and fail to find any error committed by the trial court in this case, and the judgment is accordingly affirmed.

PER OURIAM. 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.

According to the state’s testimony, appellant was seen -by a deputy sheriff sitting on a truck in company with Reynolds and Lout. The truck was in motion, and the lights were not burning. The witness threw a flashlight upon the parties and admonished them against driving without a light. Appellant stepped off the truck and walked away. After being told by the officer to stop, appellant trotted off for some little distance, but was overtaken. There was taken from his person a container in which there was a small quantity of whis-ky. This was introduced in evidence upon the trial.

The defense of insanity was interposed. Several nonexpert .witnesses were called, some of whom gave testimony supporting the theory of insanity. Among these was the wife of the appellant, who said that he “was not right mentally”; that he was unreliable in his business matters, and improvident in his trading; that upon one occasion she gave him a check to cash and a memorandum of articles that he should purchase for the money; that he had the check cashed but returned with the money and without the articles. She described his conduct as vacillating. Appellant and his wife had been married for about 21 years. She conducted a •boarding house, and we gather from the testimony that she supported the appellant, who was rather a “ne’er do well.”

The witness Lout testified that he was a schoolmate of the appellant, and related some incidents, all of which are of a very trivial nature and occurred in his school days. He also heard the appellant curse about the house and remark many times about how many negroes he had killed or would kill. At one time the appellant announced as a candidate for constable in precinct No. 3, and did some electioneering among people who lived outside the precinct. This witness gave the opinion that, based upon these facts, the appellant’s mind was unsound. Some other nonexpert witnesses gave testimony of which the foregoing is typical. As we understand their testimony, none of- them went to the extent of giving the opinion that the appellant was not capable of understanding right from wrong as to the particular act in question. The physician who qualified as an expert upon mental diseases was called by the state, and upon hypothetical questions, based upon evidence adduced upon the subject of insanity by the appellant, gave testimony favorable to the state’s view.

Upon a review of the record in the light of the motion for rehearing, the evidence impresses us as not such as to warrant this court in declaring that the verdict of the jury was not based upon sufficient evidence.

After the verdict, appellant announced or explained to his attorneys that he ran because the parties with him told him to do so in order to save himself from arrest. Upon the issue of newly discovered evidence in his motion for new trial, it was claimed that this fact was not previously known to his attorneys; that they would be able to verify the appellant’s claim that he was told to run by the persons who were with him. The motion is not supported by the affidavit of the witness who would give the new testimony, nor is there sufficient accounting for the absence of such affidavit. The rules touching newly discovered evidence are less rigid in cases where the defense is insanity. Schuessler v. State, 19 Tex. App. 472; and other cases collated in Branch’s Ann. Tex. P. O. § 33. We do not understand them to dispense with the necessity of supporting affidavits or satisfactory reasons for their absence. See Vernon’s Tex. Crim. Stat. vol. 2, p. 777, note.

Upon the trial judge rests the discretion to pass upon the merits of a motion, and his action is not to be disturbed in the absence of an abuse of discretion. See Shaw v. State, 27 Tex. 750; and other cases collated in Vernon’s Tex. Crim. Stat. vol. 2, p. 778, note' 2. In the present case, such evidence of mental capacity as was before the court seems to refer rather to weakness of mind than to that infirmity which is required to excuse him from crime. See Coffey v. State, 60 Tex. Cr. R. 77, 131 S. W. 216; Branch’s Ann. Tex. P. C. p. 18, § 30.

Regarding. the disposition made of the case upon the original hearing as the correct one, the motion for rehearing is overruled. 
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