Maynard v. State

• Decision Date: 07 March 1923
• Docket Number: (No. 7473.)
• Citation: 249 S.W. 473
• Parties: MAYNARD v. STATE.
• Court: Texas Court of Criminal Appeals

249 S.W. 473

MAYNARD v. STATE.

(No. 7473.)

Court of Criminal Appeals of Texas.

March 7, 1923.

Appeal from District Court, Delta County; Geo. B. Hall, Judge.

Rufus Maynard was convicted of transporting intoxicating liquor, and he appeals. Affirmed.

A. T. Steel and C. C. McKinney, both of Cooper, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Delta county of the transportation of intoxicating liquor, and his punishment fixed at one year in the penitentiary.

Complaint is made of the refusal of a continuance sought because of the absence of the wife of appellant. As we understand the application, it is stated that appellant expected to show by his wife that he did not own the car he was driving on the date charged, and that he did not have any intoxicating liquors for transportation unlawfully or for the purpose of sale. It is not necessary that one own the vehicle used in the unlawful transportation of liquor in order to make out his guilt. The allegation that the wife would testify that appellant did not unlawfully transport liquor would be but a statement of a conclusion, and it is not necessary, under our statute, to make out a case of transportation in violation of the law, that the facts show that same was for the purpose of sale. The appellant's motion for new trial was not accompanied by any affidavit of his wife, showing what her testimony would be, or from which this court might ascertain the materiality thereof. Walker v. State, 91 Tex. Cr. R. 507, 240 S. W. 538. From the qualification of the trial court appended to the bill of exceptions complaining of the refusal of said continuance, it is manifest that in the opinion of the court below the testimony of the wife of appellant, if exactly in line with the facts stated in the application for continuance, would not be deemed of such materiality as to affect the verdict or likely produce a different result upon another trial, in view of the facts as given in testimony.

Complaint is also made of the refusal to quash the indictment. The jury found appellant guilty under the first count of said indictment, and an examination of same convinces this court that it sufficiently charged appellant with the unlawful transportation of spirituous, vinous, and intoxicating liquor.

Appellant's third bill of exceptions complains of the testimony of the witness Pollard as to a statement made by appellant while under arrest....