
    MANIES v. STATE.
    (No. 11112.)
    Court of Criminal Appeals of Texas.
    March 7, 1928.
    Rehearing Denied April 11, 1928.
    1. Intoxicating liquors <§=>226 — Permitting questions what attracted witness’ attention to car containing liquor which defendant drove and regarding description of condition of car, held not error.
    In prosecution for possessing liquor for purposes of sale, in which defendant claimed he came to where parties had car containing liquor, who were unable to make it go and they induced him to drive it, permitting questions what attracted witness’ attention to car while defendant drove it into garage, and regarding description of condition of ear, held not error.
    2. Intoxicating liquors <@==>233(I) — In liquor prosecution, in which defendant claimed liquor in car defendant drove belonged to others, evidence that defendant was intoxicated held admissible.
    In'prosecution for possessing liquor for purposes of sale, in which defendant claimed to have no connection with intoxicating- liquor which he was transporting and that it belonged to others, admitting evidence that defendant was under influence of intoxicating liquor at time, held not error.
    3. Criminal law @=»742(l)—Where state proved defendant was in possession of automobile containing liquor, truth of defendant’s explanation was for jury.
    In prosecution for possessing intoxicating liquor for purposes of sale, where state proved defendant was in possession of automobile containing liquor and driving it, truth of defendant’s explanation that he came to where parties had car, who were unable to make it go and that they got defendant to drive car for them, held for jury.
    Appeal from District Court, Schleicher County; J. P. Sutton, Judge.
    Jim Maníes was convicted of possessing intoxicating liquor for purposes of sale, and he appeals.
    Affirmed.
    Anderson & Mobley, of San Angelo, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for possessing intoxicating liquor for purposes of sale; punishment, two years in the penitentiary.

The facts are short, and show appellant as the driver and apparent possessor of the car in which were found 328 quarts of tequila, shown by the testimony to be intoxicating. The defense was, that appellant came to where some parties had said car; but were unable to induce it to go, and they got appellant to drive the car for them.

Complaint is made, that the district attorney asked a witness who saw appellant drive the car in question into a garage at Eldorado, “What first attracted your attention to the car?” The objection that it had not been shown that appellant was in possession of the car, and that he could not be responsible for what attracted the witness’ attention, seems without merit. Another bill complains that witness was asked to describe the condition of the car. The condition of the car was apparently what attracted the attention of the officers. It had a false bottom, and the signs were upside down and one of them badly crumpled up. We perceive no injury in the overruling of this objection.

Two bills of exception complain of the admission of testimony that the defendant was under the influence of intoxicating liquor at the time. The admission of this testimony was not error. He claimed to have no connection with the intoxicating liquor which he was transporting and that it belonged to others. His condition as being under the influence of intoxicating liquor, was a circumstance to be considered by the jury in passing upon the entire case.

The remaining bill of exceptions complains of the refusal of appellant’s motion for a peremptory instruction of not guilty, based on the proposition that the state had not made out the case as laid in the indictment. We cannot agree to the soundness of the contention. The state had proved appellant in possession of the car and driving it. He gave his explanation, the truth of which was for the jury. '

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

We have re-examined the record in the light of appellant’s motion, but find no reason for changing the views already expressed.

The motion is overruled. 
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