*1 [January Criminal Texas upon or commented the matter was not mentioned room, some of the nine the while in times, many the state- mentioned as as three was stand made that he should have taken the ment was explained question he with in and where what he did the car during After exam- was the time when had the car. a careful bill, ination of this are to the conclusion that the con- we forced discussing to tes- failure of the jury in the duct of the 710, P., hold- tify Art. C. and the in contravention of C. Hennington State, ings v. W. in the cases of 271 S. of this court 454; State, Rone v. 288 W. Rees v. 278 S. W. S. many in other cases cited therein. argument exceptions complains closing Bill of No. county attorney, which, contended, in the he alluded to the it is unnecessary testify. failure of the It becomes disposition bill, have made of the in we discuss this view of case, complained the matters for the reason that likely again upon trial. in another arise the same form discussed,
For the we error above are remanded, of the trial court be reversed and should accordingly and it is so ordered. remained.
Reversed and foregoing opinion Appeals of the Commission of has been by Judges Appeals examined Court Criminal approved by the Court.
Louis Johnson v. State. 15, 10335. December 1926. No. Delivered Rehearing January 26, 1927. denied Liquor Intoxicating Sentence— —Transporting on —No —Practice Cause passed by lower shall be an that sentence It is In was sentenced. court, must show on the record us, appears the cause showing, record before such .the absence App. 323; Arda Following 14 Tex. Grim. must be dismissed. Wooldridge 193, v. v. Rep. 324. REHEARING. ON Neces- —Same—Evidence—Properly Received —Search Warrant —Not sary. corrected, be considered on the case will having now. been The record its automobile, driving officers seen Where fruit following him, and a threw discovering that the officers were The State. Johnson car, presented a search there was no issue out of car, result as the found without a *2 Jury Error. Reversible 8.—Same—Misconduct of —Not agreed Where, one after had customer, appellant had lost a barrel remarked that he had barrels, testi- made mony are or to appellant, we purpose to the barrels were sold for which misconduct of such this was with the belief that hurt to call for a reversal this case. County. Gregg Tried District Court from the Beard, Judge. Hon. P. 0. below before the intoxicating liquor, transporting Appeal from conviction for a penalty years penitentiary. two in the case.
The states the appellant.
No brief filed for Attorney, Lyles, M. Stinson, and Robert Sam D. State’s Attorney, Assistant State’s for the State. Judge Gregg
LATTIMORE, in District Court . Conviction County transporting intoxicating liquor, punishment two years penitentiary. in the entry any
The record is before us without sentence. 14 Tex. appeal. sentence is a to an App. Grim. Arcia v. Woold- a sen- ridge Rep. absence of In the Crim. Tex. questions jurisdiction pass upon to tence this court is without appeal. raised on this is dismissed. TO APPEAL.
ON MOTION REINSTATE Judge LATTIMORE, was dismissed in this case . The day This at a former because the record contained sentence. supplied, on its omission is now and the case is considered appel- stopped in which were The facts show that officers a car night, out negroes, about 11 o’clock at lant and two other light, placed a car a flash public officers had on a road. The appellant was car in which the road. Just before across were stop, a fruit came to a negroes in the Page, one of the car. Richard thrown from the night him that hired appellant, car with appellant procured go country point where to the out in [,January Texas Criminal whiskey, Page which was thrown from the car. Ed afternoon, response inquiry that by told him that to an anything up,” if witness him “stir night going expected some after be back testimony o’clock, if no bad luck. The showed that negroes car which the other were delayed by tire trouble.
Appellant provisions 727a, seeks invoke the 4a of Arts. P., against reception C. C. of the officers, Hayes finding Gibson, relative complaint thrown from the car. The is without merit. The Whiskey was not found in the car as the result of therefore, That the officers had no search was imma- terial. Brown v. Rep.
Appellant up sets in his motion new *3 being proof jury trial. There before burglary theft, jury convicted of reference thereto in the room person did not amount fact to misconduct. The that a eating apple jurors sat down on the lawn near the spoke him, affirmatively one of them shown that there any way trial, presents was no reference in to the case such misconduct as would call for a reversal. After the agreed upon jurors one of the remarked that he had lost a barrel customer. He said that some one had made with him to barrels night. was to come them at Some they heard this statement and a did number testified that perceive materiality injurious not hear it. We do not or effect of such statement. There pur- was no pose sold, argu- for which the barrels were nor ment in the room relative to such or or statement its effect purpose. juror who made the statement said that he real- already ized that peni- voted to send tentiary when he made this statement. We with the belief that this of such or hurt as to call for a reversal the cáse.
Finding record, error will affirmed. be
Affirmed.