
    NOBLE v. STATE.
    (No. 8474.)
    (Court of Criminal Appeals of Texas.
    June 18, 1924.
    Rehearing Denied Dec. 10, 1924.)
    1. Intoxicating liquors <&wkey;238(1) — Evidence of transporting intoxicating liquor held for jury.
    Evidence of transporting intoxicating liquor 'held for jury.
    2. Criminal law <&wkey;1120(8) — Bill of exception to admission of testimony held not entitled to consideration, because not including matter showing soundness of objection.
    Bill of exception, complaining of reception in evidence of statement of accused at time he was stopped by officer and his car searched, which merely presented fact that objection was made to such statement because accused was under arrest at time, and did not include matter showing that accused was then under arrest, could not be considered.
    3. Criminal law <&wkey;>1172(1) — Erroneous definition of intoxicating liquor harmless, where undisputed testimony showed liquor was intoxicating.
    Erroneous definition of intoxicating liquor 'held harmless, where it was undisputed that liquor found in accused’s possession was intoxicating.
    4. Intoxicating liquors <&wkey;239(4)— Charge as to right to acquittal, if liquor was transported “for medicinal purposes, held proper.
    Charge as to right to acquittal, if liquor was transported for medicinal purposes, held proper.
    5. Intoxicating liquors &wkey;>239(2) — Charge as to right to acquittal, if liquor was used for medicinal purposes, held not too restrictive.
    Charge confining accused’s right to transport liquor, for medicinal purposes, to' needs of his wife, held not too restrictive, where the testimony did not suggest that any one except the wife needed the liquor for such purposes.
    6. Intoxicating liquors <&wkey;233(l) — That accused was drinking held admissible to rebut defense of transportation for medicinal purposes.
    That accused was drinking at and before time of arrest held admissible to rebut defense of transportation for medicinal purposes.
    7. Intoxicating liquors <&wkey;>138 — Refusal to charge that accused could transport liquor for his own personal use, or for úse of his family, held not error.
    Refusal to charge that accused could transport liquor for his own personal use, or for use of his family, held not'error.
    On Motion for Rehearing.
    8. Criminal law <&wkey;>956(12) — Refusal to grant uncontroverted sworn motion for new trial, based on jury’s misconduct, held proper, in absence of affidavit or testimony in support of motion.
    Refusal to grant uncontroverted sworn motion for new trial, based on jury’s misconduct,
    
      held proper, in absence of affidavit attached to motion, and of oral testimony in its support.
    Appeal from District Court, Hall County; R. L. Templeton, Judge.
    John Noble was convicted of transporting intoxicating liquor, and he appeals.
    Affirmed.
    Fires & Williams, of Childress, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Hall county of transporting intoxicating liquor, and his punishment fixed at one year and six months in the penitentiary.

It appears from the testimony that about the 26th of August, 1922, appellant was arrested on a road from Lakeview to Memphis, and that in his ear he had a half-gallon jar full of corn whisky and a bottle, spoken of as a quart bottle, about two-thirds full of the same stuff. Appellant lived about seven or eight miles west from the town of Lakeview, in Hall county, but at the time of his arrest was several miles east of Lake-view, and going east. He had been seen in and around the town of Lakeview several times before he left, going to Memphis. The jar of whisky was rolled up- in a tow sack. Another witness testified that appellant told him that he was going to Memphis. At the time of his arrest, appellant had been drinking. The defensive theory was that the liquor was being transported for use for medicinal purposes by appellant’s wife. He testified to this himself. He also testified that it was election day, and an election was being held in various voting boxes in the county, and that he was on his way to Memphis with one Doster, whom he was bringing to Memphis, and they were about six miles east of Lakeview at the time the officers arrested appellant. On „ rebuttal, the state witnesses testified that both Noble and Doster appeared to have been drinking at the time of the arrest, and one witness testified that they had been drinking quite a lot. It was in testimony that appellant told the officer who arrested him that he was not treating him right, and when the officer took the cover off the whisky appellant asked him to let it alone, and said that he would see him the next day and make it all right'. There was another bottle in the ear, which was empty, but smelled as if it had had whisky in it.

We deem it not erroneous for the learned trial judge to refuse to give the peremptory instruction requested, by the appellant. We do not think it error for the court to decline to grant a new trial, based on the ground of misconduct of the jury, simply because the motion for new trial was sworn to by the appellant. No affidavit was attached to the' motion; nor was there any oral evidence heard by the court. The motion was not itself offered in evidence. The motion for new trial is but a pleading, as has been often decided by this court, and will be so considered by the trial judge,'and that will be our attitude toward it, in the absence of a showing to the contrary.

The complaint, shown by bill of exceptions No. 3, of the reception in evidence of a statement made by appellant at the time he was stopped by the officer and his car searched, merely presents the fact that objection was made to said statement because at the time appellant was under arrest. The mere statement of a ground of objection is not tantamount to the establishment of the fact thus stated as ground of objection. There is nothing in the bill of exceptions from which we can determine the soundness of the objection. The statement of the witness to which the objection was made is as follows:

“Mr. Noble told me at the time I stopped him that if I would let him alone he would see me tomorrow and make it all right.”

This is riot sufficient to enable this court to determine that the accused was under arrest at the time.

There being no dispute of the fact in testimony that the liquor found in the possession of appellant, and which he was transporting, was whisky, the objection to the second paragraph of the court’s charge presents nothing of harmful consequence. In such case, even if the court gave an erroneous definition of intoxicating liquor, it would be of no avail. The court told the jury, in a paragraph of his charge, that it was unlawful for any person, directly or indirectly, to transport within this state spirituous, vinous, or malt liquors capable of producing intoxication, unless such person came under one of the exceptions under which same may be transported as herein stated. Further on in the. charge, the court told the jury that, if they believed appellant transported the liquor, still', if they further believed that he transported it for medicinal use alone, or if they had a reasonable doubt as to whether he transported it only for medicinal purposes, they should give him the benefit of the doubt, and find him not guilty. We fail to perceive wherein this is not a correct presentation of the law,

The only claim of need or desire for use of the liquor as medicine was on behalf of appellant’s wife; it being asserted that she was in poor health and needed to use the liquor as medicine. That the learned trial judge, in the charge, in presenting appellant’s right to an acquittal, if he was transporting the liquor for medicinal purposes, confined the right to transport it for such purposes, or to such use only on the part of his wife, would not be error under the facts. Such limitation might be erroneous upon a different state of facts, but under the testimony in this case it was not open to the objection that it was too restrictive. We do not think this special charge, seeking to broaden the right of appellant to carry the liquor for medicinal purposes, so as to make it include such use for his family, was called for by the evidence, and we deem the refusal of the special charge not error. As we have above stated, there was no testimony suggesting the need for whisky, or that the purpose of transporting same was for medicinal use by any one except the wife of appellant.

Appellant asserting that he was transporting the liquor for medicinal purposes, for the use of same as medicine by his wife, the state was entitled, for whatever it was worth as rebutting the proposition, to show that appellant was drinking at and before the time of his arrest. Such evidence tended to rebut the proposition that he was transporting the liquor for one of the excepted purposes. It was not erroneous for the court to refuse special charge No. 4, which contained the proposition that appellant had the right to transport the liquor for his own personal use, or for the use of his family.

The evidence supporting the verdict, and finding no error in the record calling for a reversal, the judgment of the trial court will be affirmed.

On Motion for Rehearing.

Appellant insists that, his motion for new trial based on misconduct of the jury, being sworn to and not controverted by the state, its refusal was error, and that we should have so held in our original opinion.

There were 13 grounds of the motion for new trial. Some complain of errors in the charge as given, others of the refusal of special charges, and yet others of the omission of certain things from the main charge; others of the wrongful admission of testimony, and one ground of said motion asserts, in general terms, that the reputation of appellant was discussed by the jurors in their retirement, and the commission of other offenses attributed to him, no evidence having been introduced upon either issue, and that some of the jurors were influenced thereby in arriving at the penalty 'inflicted. Prom the jurat of the clerk who swore appellant to the motion, it appears that he swore generally to the truth of all the allegations contained in said motion. We are not quite clear as to the exact contentions made by appellant, but, if we understand them, it is that, having made his motion for new trial and sworn to it, the matters therein stated should be taken as true, in the absence of some traverse by tbe state. We are not cited to any authority so bolding. As far as we know, tbe cited cases of Stanley v. State, 16 Tex. App. 400, and Richardson v State, 28 Tex. App. 216, 12 S. W. 871, do not touch tbe issue here involved. In those cases, applications for continuance bad been made and overruled, and, tbe materiality of tbe absent testimony being disclosed during tbe trial of tbe eases, and tbe court below having refused motions for new trial apparently because tbe affidavits of the absent witnesses were not appended, this court held such action to be erroneous. There is no discussion of tbe legal aspect of a sworn motion for new trial in tbe case of Hollingsworth v. State, 94 Tex. Cr. R. 244, 250 S. W 683; that not being an issue in tbe case; An inspection of tbe original record in that case, now on file in tbe office of tbe clerk of this court, discloses, however, that tbe motion for new trial was sworn to, and that, in addition, there was appended an affidavit of a juror which discloses misconduct of the jury, and, in tbe absence of any kind of controversy, was held by us sufficient. Nor do we find aught in tbe dissenting opinion in Hicks v. State, 75 Tex. Cr. R. 461, 171 S. W. 768, which sustains appellant’s contention. Tbe member of this court who wrote the .dissent based it on tbe error of tbe court below in refusing to allow tbe accused to prove, by eight jurors whom be bad present when tbe motion for new trial was beard, tbe truth of bis allegations in such motion that'the verdict was decided by lot. Tbe trial court based bis rejection of tbe proffered testimony on tbe fact that tbe state bad not controverted tbe motion, and a decision of tbe propriety of tbe action of tbe lower court in that case would seem settled by a reference to article 841, C. C. P., and subdivision 3 of article 837, C. C. P.

If appellant’s contention was tbe rule which controlled, then every motion generally sworn to by the accused, as in this case, would necessarily prove itself, as to all matters therein contained, as much in one particular as another, and we would thus come to tbe practice of accepting as true all allegations regarding tbe charge, tbe refusal of special charges, tbe admission or rejection of testimony, provided such allegations were generally sworn to. There is no such rule in this state.

In regard to tbe proposition that the motion is but a pleading, in Sharp v. State, 71 Tex. Cr R. 641, 160 S. W. 373, appears tbe following statement of the law:

“Tbe motion for a new trial is but a pleading, together with the exhibits attached thereto, and when it is sought to raise therein an issue extrinsic the record, it must be sworn to; yet swearing to it does not render it any tbe less a pleading in the case.”

Appellant’s contention that bis motion sworn to .is in tbe nature of a verified account does not appeal-to us. Tbe truth of tbe allegations of tbe motion for new trial, if of matters dehors the record, must be made to appear in some way by what may be characterized as testimony, which may be made by affidavit or oral evidence. As said by us in Odom v. State, 82 Tex. Cr. R. 584, 200 S. W. 833:

“Matters of fact set up in motion for a new trial, which matters of fact are not verified by bill of exceptions or statement of evidence filed during the term, cannot become tbe subject of review.”

The soundness and justice of this view, in regard to matters set up dehors tbe record, is apparent from an analysis of tbe contention of appellant in tbe case before us. His sworn motion-as to what took place in tbe jury room is, as to appellant, wholly hearsay, at best. He was not there. He is only swearing to what some one else told him. It would still be of tbe same kind, if be gave names and attempted to give exact quotations from what was said by tbe jurors to him. All this tbe trial court knew, and no affidavits being appended to tbe motion, and no profert being made of oral testimony in support of bis pleading, tbe trial court correctly refused tbe motion.

Tbe motion for rehearing will be overruled. 
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