Opinion
No. 13470.
Delivered June 18, 1930.
1. — Intoxicating Liquor — Evidence — Verdict.
The issue as to whether appellant was taking the whisky to a sick woman was fairly submitted to the jury, and the issue was concluded against appellant.
2. — New Trial — Misconduct of Jury — Practice.
Where it was contended that the jury had separated during the trial, and the evidence upon the hearing of the motion was brought forward in question and answer form, it cannot be considered under Art. 760 C. C. P. Section 3.
Appeal from the District Court, Bowie County. Tried below before the Hon. Geo. W. Johnson, Judge.
Appeal from a conviction for transporting intoxicating liquor; penalty, one year in the penitentiary.
The opinion state the case.
King, Mahaffey Wheeler and C. Everett Bryson, all of Texarkana, for appellant.
A. A. Dawson, State's Attorney, of Austin, for the State.
Conviction is for transporting intoxicating liquor, punishment being one year in the penitentiary.
The evidence shows conclusively that appellant transported the liquor. It was his claim that he was taking it to a sick woman to be used by her for medicinal purposes. This issue was fairly submitted and the jury settled it against appellant.
In the motion for new trial appellant averred that the jury had separated during the trial. Upon the hearing of the motion evidence was heard upon the point. It is brought forward in a question and answer statement of facts. In this form it can not be considered. Section 3 of Article 760 C. C. P.; Jacobs v. State, 92 Tex.Crim. R., 242 S.W. 232; Jenkins v. State, 93 Tex Cr. R. 375, 247 S.W. 861; Fenton v. State, 93 Tex.Crim. R., 248 S.W. 363.
The judgment is affirmed.
Affirmed.