
    WEBB v. STATE.
    (No. 9831.)
    (Court of Criminal Appeals of Texas.
    Feb. 3, 1926.
    Rehearing Denied March 10, 1926.)
    1. Criminal law <&wkey;11661/2(6).
    Inquiry, by prosecution, of jurors, in prosecution for transporting liquor, whether their verdict would be affected by their reading of a newspaper account referring to a collision of an automobile with a motorcycle officer at a point where accused and companions were discovered in wrecked automobile, held not prejudicial.
    2. Intoxicating liquors @=233(2).
    In prosecution for liquor transportation, evidence that, before accused was arrested in Texas with liquor in his possession at scene of wreck of his car, he had left Oklahoma in that car with liquor in his possession, held admissible.
    3. Criminal law &wkey;>l 120(8).
    Bill of exception to admission of testimony held not entitled to consideration, where it did not set out surroundings of questions and answers objected to in intelligible manner.
    4. Intoxicating liquors @=233(2).
    That bottle fell by side of witness’ car into ditch held admissible, in prosecution for transportation of liquor in automobile which was wrecked.
    5. Criminal law @=351 (10).
    Evidence that accused charged with liquor offense destroyed, or’ sought to destroy, evidence against him, is admissible.
    6. Criminal law @=¡829(1).
    Refusal to give offered special charges covered by main charge is not ground for reversal.
    7. Criminal law @=939(3), 958(4).
    Accused held not entitled to new; trial fór newly discovered evidence by witnesses, who were present at trial and whose affidavits of testimony accused did not exhibit on hearing of motion.
    On Motion for Rehearing.
    8. Intoxicating liquors @=236(20).
    Evidence held sufficient to support conviction of transporting intoxicating liquor.
    Oommissioners’ Decision.
    Appeal from District Court, Lamar County; Geo. P. Blackburn, Judge.
    Sidney Webb was. convicted of transporting liquor, and he appeals.
    Affirmed.
    Patrick & Eubank and H. Grady Sturgeon, all of Paris, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY,- J.

The offense is transporting liquor, and the punishment is three years in the penitentiary.

The state’s testimony is uncontradicted in this récord; it was such as to perhaps warrant the court in charging on circumstantial evidence, and this he did in a manner acceptable to the appellant. There are no objections to the court’s charge contained in the record. We think the evidence is amply sufficient to show that the appellant procured whisky in the state of Oklahoma near the Texas line and transpohted it to the city of Paris in Lamar county, Tex.

The appellant complains at the court’s action in permitting the private prosecutor to state to the jurors in their voir dire examination the following:

“The proof will show in this case that this transaction occurred at the place where Motorcycle Officer Andrew Chenault was run over; from reading the newspaper account of this would that influence you in arriving at your verdict?”

Appellant objected to this statement: First, because the appellant is charged by separate bill of indictment with driving while intoxicated and with failure to stop and render assistance after a collision, and a statement of the above facts calls to the mind of the jury facts connected with these charges; and, second, he objected to it because it is prejudicial to the rights of the defendant, in that it places before the jury matters not connected with the case at bar; and, third, because defendant is not charged herein with running over Motorcycle Officer Andrew Chenault. The court in qualifying the bill says that only the third objection above mentioned was made to the question.

The record that is before us is replete with statements and suggestions that the appellant and parties with him in the car were in. a wreck at the time the whisky was discovered in Paris, and we fail to ^ee how it could have in any manner prejudiced his rights for the state to inquire of the jurors as to whether or not this would in any manner influence their verdict in this case.

Various bills are reserved to the court’s action in permitting proof that the appellant and others transported liquor in the state of Oklahoma. We think it clear beyond dispute, from the facts and circumstances in this case, that the appellant procured the very liquor that he was found with in Lamar county, Tex., a few hours before in the state of Oklahoma, and it seems to us clear that it was transported in his possession from that state into Texas. This being true, we think that he is without just grounds of complaint in regard to the matter. The case was one depending on circumstantial evidence, and it was' certainly a cogent eircumstance to show that a few hours before he was arrested in Texas and found with liquor • in his possession at the scene of the wreck of his automobile, he had left Oklahoma in said automobile with a half gallon of whisky. As above stated, it occurs to us that this is a cogent circumstance tending to show that he transported the liquor in this state.

Bill No. 3 is unintelligible and does not set out the surroundings of the questions and answers objected to in a manner sufficient for us to understand same.

It was clearly legitimate for the state'to prove by the witness Phillips that he drove down to the scene of the wreck, and that a bottle fell right by his side in the side of the ditch. Other testimony in the case, if true, was sufficient to show that the appellant threw a jar containing whisky out of the automobile. This witness further stated in his testimony that he first thought the receptacle was a bottle, but that he after-wards discovered that it was a jar. It has always been permissible to show that a person on trial has destroyed, or sought to destroy, evidence against him.

Appellant offered various special charges, but so far as they were applicable to the facts in this case and correctly state the law, they were fully covered in the court’s main charge to the jury. In fact, the charge as given by the trial judge was unusually clear and lucid and protected every right the appellant had.

Appellant in his motion for a new trial seeks to allege newly discovered evidence. The motion in no manner complies with the law with reference to newly discovered evidence, and, besides, the trial court in his qualification to the bill certifies that the testimony on the hearing on the motion for a new trial showed that both the witnesses by whom appellant claimed that he had discovered new evidence were in the courtroom when the defendant was tried and were not called by him to testify, and. that neither of these parties testified on motion for new trial either in person or by affidavit, but that defendant had purported affidavits of their testimony on the hearing of said motion and detached same from the motion and would not exhibit it to the court. Under this condition of the record, appellant was clearly not entitled to a new trial because of newly discovered evidence.

Finding no error in the record, the judgment is in all things affirmed.

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.

LATTIMORE, J.

In his motion appellant renews complaint of our decision on practically all of the points raised in the original submission. Each of the bills of exception has again received our careful consideration same being viewed in the light of the additional objections made by appellant in his said motion; but we are unable to bring ourselves in accord with any of the contentions made. The special charges were covered by the main charge. The accomplice witnesses who testified showed beyond question the transportation of intoxicating liquor by appellant up to a point near the ferry crossing Red river into Texas, and said witnesses admitted themselves to be so drunk beyond that point as to know little or nothing about what occurred. Other witnesses who in Paris, Lamar county, Tex., went out to the ear in which the liquor was transported, on the night in question, after there had been a collision between said car and a motorcycle, testified to seeing appellant have in his hands what one witness then thought was a bottle, but this witness and others later testified was a fruit jar, and that same contained a quantity of whisky variously estimated. The evidence seems ample to support the judgment of conviction, and we believe none of the contentions made in this motion are sound.

The motion for rehearing will be overruled. 
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