
    ROMERO v. STATE.
    (No. 10926.)
    Court of Criminal Appeals of Texas.
    June 15, 1927.
    Writ of Certiorari Granted Oct. 19, 1927.
    Rehearing Denied Nov. 2, 1927.
    Application to File Second Motion for Re- ,. hearing Denied Nov. 3Ó, 1927.
    1. Intoxicating liquors <§=>236(20)— Evidence held to sustain conviction of transportation of intoxicating liquor.
    In prosecution for transportation of intoxicating liquor, evidence that officers with search warrant pursued defendant and found whisky in his automobile, some in jugs and some in bottles, held to sustain conviction.
    On Motion for Rehearing.
    2. Criminal law <§=>1092(9) — Extension of time, to file bilis of exception and statements of fact must be from date notice of appeal is given (Code Cr. Proc. 1925, art. 766, subd. 5).
    Under Code Cr. Proc. 1925, art. 760, subd. 5, extension of time in which to file bills of exception and statements of fact must be from date notice of appeal is given.
    3. Criminal law <§=>1092(7) — Bills of exception, filed more than 96 days from date of overruling motion for new trial, cannot be considered.
    Bills of exception, which record shows were not filed in lower court for more than 90 days from date of overruling motion for new trial, cannot be considered.
    4. Criminal law <§=>1144(12) — Bills of exception not negativing fact that testimony might have become admissible, presumption is that court’s ruling admitting it was correct.
    In prosecution for transportation of intoxicating liquor, where hill " of exceptions complained of clerk’s testimony as to other cases pending against defendant, but did not contain certificate negativing that evidence might have become admissible in development of case, presumption is that court’s ruling admitting testimony was correct.
    5. Criminal law <§=>1120(90 — In absence of affidavit for search warrant in record, Court of Criminal Appeals cannot review objection to its sufficiency.
    Where evidence as to finding whisky in defendant’s automobile was objected to on ground that search warrant was illegal because of insufficient affidavit therefor, but affidavit is not set out in bills of exceptions, Court of Criminal Appeals cannot review objection.
    On Application to File Second Motion for Rehearing.
    6. Witnesses <§=>337(5) — Defendant having testified in his own behalf, state cpuld cross-examine as to whether he had been indicted for felony.
    Where defendant in prosecution for transportation of intoxicating liquor had testified ih his own behalf, it was competent for state to cross-examine him as to whether he had been under indictment for felony.
    7. Witnesses <§=>359 — Defendant having denied pendency of indictments against him, state could introduce testimony showing previous indictments pending.
    Where defendant in prosecution for transportation of intoxicating liquor had as a witness denied pendency of indictments against him at time of trial, it was competent for state to show by district clerk as a witness that previous indictments for unlawful possession of liquors and for rape and assault to rape were pending against defendant.
    8. Criminal law <§=>l 114(2) — Facts relied on to condemn ruling complained of must be set ou,t in bill, or statement of facts showing vice be . pointed out therein^
    It is essential that fact or facts on which defendant relies as condemning ruling of which he complains be set out in bill of exceptions or portion of statement of facts showing vice be pointed out in bill; mere recital of ground of objection not being a compliance therewith.
    9. Criminal law <§=>l i44<*/2) — In absence of contrary showing in bill of exceptions, presumption obtains court’s ruling was correct.
    In absence of a showing in the bill of exceptions to the contrary, presumption obtains that court’s ruling was correct.
    Appeal from District Court, Jefferson County; Geo. C. O’Brien, Judge.
    
      Amedis Romero was convicted of transportation of intoxicating liquor, and be appeals.
    Affirmed.
    A. S. Reagan and Alfred DuPerier, both of Beaumont, for appellant.
    Sam D. Stinson, State’s - Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for transportation of intoxicating liquor; punishment being one year in the penitentiary.

We find no bills of exception in the record bringing forward complaints for review. The only question is the sufficiency of the evidence. Officers had a warrant authorizing the search of appellant’s car. They saw the car passing on the street, and followed it, not permitting it to get out of their sight. When the car stopped, appellant was under the steering wheel, his wife and daughter on the seat with him. The officers found several gallons of whisky in the car, some in jugs and some in quart bottles. One quart bottle was on the seat, between appellant and his wife. The evidence is more than sufficient to-support the verdict.

The judgment is affirmed. .

On Motion for Rehearing Oct. 19, 1927.

Appellant has filed a motion for rehearing, averring therein that the clerk of the trial court omitted from the transcript three bills of exception which had been approved by the trial judge and lodged with the clerk for filing. In connection with his said motion, appellant applies for a writ of certiorari commanding the clerk to forward to this court in a supplemental transcript the three bills of exception mentioned.

Tile writ is granted, and the clerk will incorporate 'in a supplemental transcript said bills of exception, showing the date of their filing, and forward same to this court.

On Motion for Rehearing Nov. 2, 1927.

At the time the judgment of affirmance was rendered, no bills of exception appeared in the transcript. In connection with his motion for rehearing, appellant prayed for and was granted a certiorari in order to have brought to this court by supplemental transcript certain bills which he claims should have been in the record. In obedience to such writ of certiorari, the bills are now before us, and the record with reference thereto reflects that the motion for new trial was overruled on the 12th day of January, at which time the court entered an order granting 60 days from adjournment of court in which to file bills of exception. We call attention to the fact that since the adoption of the 1925 revision of the O. O. P. extension of time in which to file bills of exception and statements of fact must be from the’date notice of appeal is given. Subdivision 5, art. 760, C. C. P. 1925; Courser v. State, 100 Tex. Cr. R. 146, 291 S. W. 239, and cases therein cited.

The bills now in the record do not bear the date of the judge’s approval, but do show not to have been filed in the lower court until the 18th day of May, which was more than 90 days from the date of overruling the motion for new trial, and are therefore not entitled to consideration. However, before observing the date of the delayed filing, we had examined the bills,- and none of them reflect error. The first bill complains of the district clerk giving testimony as to certain other cases then pending on the docket against appellant. This evidence might have become admissible in the development of the case, and the bills contain no certificate negativing such to be the fact, in the absence of which we must presume, the court was correct in his ruling. The other bills complain of the reception of evidence from the officers as to finding whisky in appellant’s car. It is stated as a ground of objection that the search was illegal as based upon an insufficient affidavit, but the affidavit is nowhere set out in the bills, and manifestly we are in no position to review the point.

Appellant’s motion for rehearing is overruled.

On Application to Elle Second Motion for Rehearing Nov. 30, 1927.

MORROW, P. J.

In view of the condition of the record and the affidavits filed for the purpose of showing the excuse for the delay in filing the bills of exceptions, a discussion of the motion is deemed expedient.

According to the state’s testimony, Officer Foote was possessed of a warrant to search the appellant’s automobile. The description of the automobile was given in the search warrant. The witness saw the car upon the street, followed it, and ultimately overtook it where the appellant had stopped it. He was riding on the front seat under the steering wheel. His wife and another lady were riding on the seat with him. Upon searching the car, the officer found a five-gallon jug of whisky in the back, two one-gallon jugs full of whisky, another one-gallon jug almost full, and also a quart bottle in between the appellant and his wife. According to the officer, not more than five minutes elapsed from the time he first saw the appellant until the search was made; that he was constantly in sight of the witness. The officer said that he handed the search warrant to the appellant.

The wife of the appellant testified that, while they were driving, they observed a negro following them, and that before the arrest the car had been parked some fifteen minutes; that she was out of the car part of the time; that she had not seen any whisky in the car, and did not know of the presence of the jugs or other containers. The transaction took place at night. She said that there was nothing in the car at the time they left their home.

The appellant testified in his own behalf. From his testimony, we take the following quotation: His testimony was, in substance, that he went to the Longshoremen’s Hall to meet a negro by the name of Curley, who had control of a band. Appellant was conducting a dance hall and wanted to engage a band. He stopped his car and walked a half block to see Curley. The car remained stationary for about fifteen minutes. When he returned to the car, he found the officers there. They searched the car and found some whisky, the amount of which he did not know. He was not shown any search warrant. He did not put the whisky in his car, - and did not know how it came to be there.

The appellant further testified that there were no other indictments pending against him in Jefferson county of which he was aware. He said that a good many years ago there was an indictment for assault to rape against him, but he could not tell whether it had been dismissed or not; that they threw one away two years ago; that at the present time he was not under indictment for rape that he knew of; that he had one case ready for trial, but that they did not try it, but told him they would dismiss it; that he had never been tried before.

The district clerk was called as a witness, and testified that in a certain case the appellant was charged with the unlawful possession of intoxicating liquor; that the trial resulted in a disagreement of the jury, and in July, 1926, the case was dismissed; that at the present time there were two indictments pending against the appellant in the Sixtieth judicial district court; that one was for rape, and the other for assault to rape; that both of these cases were undis-posed of.

In bill of exceptions No. 1, complaint is made of the testimony of the district clerk showing that the appellant had been indicted for the unlawful possession of intoxicating liquor, and that, after a mistrial, the case was dismissed; also that the state was allowed to prove by the testimony of the same witness that there were pending at the time of the trial two indictments for felony, one for rape and one for assault to rape. The appellant having testified in his own behalf, it was competent upon cross-examination to ascertain from him whether he had been under indictment for a felony. See Lights v. State, 21 Tex. App. 308, 17 S. W. 428, and numerous other cases collated in Branch’s Ann. Tex. P. C. p. 101, § 167, subd. 1. The appellant’s testimony upon the subject tended to deny the pendency of any indictment against him at the time of the trial, and is quite indefinite as to any previous indictment for violation of the law against engaging in the liquor traffic. Under these circumstances, it was competent to introduce testimony showing the previous indictment and the pendency of indictments for felonies as was done in the present case. See Brazos v. State (Tex. Cr. App.) 33 S. W. 540; Lee v. State, 45 Tex. Cr. R. 52, 73 S. W. 407; Wilson v. State (Tex. Cr. App.) 78 S. W. 232; Robinson v. State, 70 Tex. Cr. R. 81, 156 S. W. 212.

In bill No. 2 there is complaint of the receipt in evidence of the testimony of the officers showing the result of the search of the appellant’s automobile. The ground of exception is that the search warrant was based upon an insufficient affidavit. This appears merely as a ground of objection, and fails to set out the search warrant or state its substance. To require attention of the' reviewing court, it is essential that the fact or facts upon which the appellant relies as condemning the ruling of the court of which he complains be set out in the bill, or a portion of the statement of facts showing the vice be pointed out in the bill. The mere recital of the ground of objection is not a compliance with this requisite. See Robbins v. State, 100 Tex. Cr. R. 592, 272 S. W. 175; Pahlka v. State, 100 Tex. Cr. R. 504, 271 S. W. 899; Vernon’s Tex. C. C. P 1925, vol. 2, p. 364, art. 667, note 23. From the bill before it, this court cannot know the contents of the search warrant; neither can it assume that the trial court received evidence which was obtained under an insufficient search warrant. In the absence of a showing in the bill to the contrary, the presumption obtains that the court’s ruling was correct.

The evidence supports the verdict? No erroneous ruling of the trial court has been pointed out, for which reason the affirmance of the judgment and the refusal to change the ruling upon rehearing, when considered in connection with the entire record, must be upheld.

The motion is denied. 
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