
    JOHNSON v. STATE.
    (No. 3258.)
    (Court of Criminal Appeals of Texas.
    Nov. 4, 1914.
    Rehearing Denied Dec. 2, 1914.)
    1. Intoxicating Liquors (§ 6) — Power off State to Define Offenses.
    The Legislature may pass laws defining offenses for new conditions arising under the prohibition law, to aid in the prevention of illegal sales. ' .
    [Ed. Note. — Por other cases, see Intoxicating Liquors, Cent. Dig. § 4; Dec. Dig. § 6.]
    2. Intoxicating Liquors (§ 14) — Prohibition Territoky — Statutes—'Validity.
    The Allison Act (Acts 33d Leg. Ex. Sess. c. 31), prohibiting the shipment of intoxicating liquors into prohibition territory, is constitutional.
    [Ed. Note. — Por other eases, see Intoxicating Liquors, Cent. Dig. § 16; Dec. Dig. § 14.]
    3. Intoxicating Liquors (§ 205) — Transportation into Prohibition Territory-Indictment — Requisites.
    An indictment charging the transportation and delivery of intoxicating liquor in prohibition territory, which alleges that on a designated date an election was held under proper authority and that prohibition was adopted, was sufficient, without naming the various voting precincts in the county.
    [Ed. Note. — Por other cases, see Intoxicating Liquors, Cent. Dig. § 225; Dec. Dig. § 205.]
    4. Indictment and Information (§ 125)— Duplicity.
    An indictment charging conjunctively a violation of Allison Act, § 4, making it unlawful, except as otherwise' provided, for any person to ship, transport, carry, or deliver intoxicating liquors to any other person in prohibition territory, charges but one offense, committed in any one of the ways specified.
    [Ed. Note. — Por other cases, see Indictment and Information, Cent. Dig. §§ 334^-400; Dec. Dig. § 125.]
    5. Criminal Law (§ 404) — Demonstrative Evidence — Admissibility.
    Where, on a trial for carrying into prohibition territory intoxicating liquor, there was evidence that a valise -containing whisky was the property of accused, and that he had transported the same into prohibition territory from a point in the state, the action of the court in allowing the district attorney to open the valise in the presence of the jury, and introduce it and the whisky contained therein in evidence, was proper.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 873, 891-893, 1457; Dec. Dig. § 404.]
    6. Intoxicating Liquors (§ 231) — Violation of Prohibition Law — Evidence—Admissibility.
    On a trial for carrying intoxicating liquor into prohibition territory, the testimony of an officer, seizing a valise of accused which he had carried into the prohibition territory, that the bottles in the valise contained whisky, was admissible.
    [Ed. Note. — Por other eases, see Intoxicating Liquors, Cent. Dig. § 291; Dec. Dig'. § 231.]
    7. Criminal Law (§ 338) — Evidence—Relevancy.
    Where, on a trial for carrying into prohibition territory intoxicating liquor, the evidence clearly showed that a valise containing bottles of whisky was carried into the territory by accused, the testimony of an officer that he saw a third person go to a negro coach, and saw a negro’s arm handing the valise out to him, and that when the third person saw the officer he threw the valise under the coach, was admissible as against the objection that it was not shown that accused handed the valise to the third person; the evidence excluding every other reasonable hypothesis than the fact that accused was the one who handed the valise to the third person.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 752, 753, 755, 756, 787, 788, 801, 855; Dee. Dig. § 338.]
    8. Indictment and Information (§ 125)— Statutory Offenses.
    Where several offenses are embraced in the same general statutory definition, and are punishable in the same manner, they are not distinct offenses, and may be charged conjunctively in the same count, and a conviction may be had on proving the commission of the offense in any of the ways alleged.
    [Ed. Note. — F'or other cases, see Indictment and Information, Cent. Dig. §§ 334-400; Dee. Dig. § 125.]
    9. Intoxicating Liquors (§ 236) — Violation of Prohibition Law — Evidence — Sufficiency.
    On a trial for unlawfully transporting and delivering intoxicating liquor in prohibition territory from another point in the state, evidence held to sustain a conviction.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. § 236.]
    Davidson, J., dissenting.
    
      Appeal from District Court, Lampasas County; John D. Robinson, Judge.
    Cooper Johnson was convicted of crime, and he appeals.
    Affirmed.
    T. S. Alexander and Word & Walker, all of Lampasas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For oilier cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

The indictment in this case alleges that prohibition was in force in Lam-pasas county, and that appellant .on or about March 11, 1914, did unlawfully transport, carry, and deliver one quart of intoxicating liquor to Horace Griffin, within prohibition territory in this state from a point within ■this state to the grand jurors unknown.

Appellant moved to quash the indictment, because the act of the Legislature under which this prosecution was brought was enacted after prohibition had been adopted in Lampasas county, making the same argument as heretofore made that the Legislature was without power to adopt remedial legislation in aid of the enforcement of the prohibition law, and to prevent illegal sales being made. This question was so thoroughly discussed in the case of Fitch v. State, 58 Tex. Cr. R. 367, 127 S. W. 1040, we do not deem it necessary to do so again. The contention that the Legislature was without power and authority to pass the law was also held adversely to appellant in the Pitch Case, supra. As said in that case, “it would be a monstrous doctrine to hold that the Legislature is powerless to enact legislation defining offenses * * * for the new conditions that may arise” under the prohibition law, and if the new enactment has for its object and purpose to aid in the prevention of illegal sales it is to be commended, and not condemned. As to the constitutionality of what is known as the “Allison Law,” this court has heretofore upheld its constitutionality. Ex parte Muse, 168 S. W. 520, and Ex parte Peede, 170 S. W. 749, decided at this term ■and not yet ofiieially reported.

Neither was it necessary in the indictment to,allege the names of the various voting precincts in the county. The allegation that on the 30th day of November, 1910, an election was held under proper authority, and that prohibition has been adopted, etc., was sufficient, without naming the various voting boxes in the county.

The complaint that the indictment charges three offenses, and is therefore void, is, we think, without merit. Section 4.of the Allison law (page 63, Session Acts 33d Leg.) makes it an offense for any person to ship, transport, carry or deliver intoxicating liquor to any other person in prohibition territory, except as otherwise provided in the act. The offense may be alleged to have been committed in all of these ways, and proof that the offense was committed in either of the ways alleged would sustain a conviction. The fact that the pleader could have elected to charge that he committed the offense defined in this section in only one of the ways does not prevent him from also charging that defendant committed the offense in all of the four ways mentioned, by use of the conjunction “and,” instead of “or.” In Comer v. State, 26 Tex. App. 509, 10 S. W. 106, it was held by this court that if several offenses are embraced in the same general definition, and are punishable in the same manner, they are not distinct offenses, and may be charged conjunctively in the same count. See, also, Howell v. State, 29 Tex. App. 592, 16 S. W. 533; Laroe v. State, 30 Tex. App. 374, 17 S. W. 934; Holman v. State, 90 S. W. 174; Prendergast v. State, 41 Tex. Cr. R. 358, 57 S. W. 850; Morris v. State, 57 Tex. Cr. R. 163, 121 S. W. 1112, and cases cited.

facts in this ease would authorize a jury to find that appellant approached Hor-HorGriffin, who was in Lampasas, Lampasas county, a county where prohibition was in force, and solicited an order for intoxicating liquors, in that he told Griffin he was going after whisky, and asked him if he wanted some. Griffin replied that he wanted two quarts. He then paid appellant $2, and told him he wanted bonded goods, either Hill & Hill or Jersey Cream. Appellant then told him his part of the expense would be 55 cents, and Griffin paid this amount in addi-addito the price of the whisky. Appellant for some reason did not want to take his valise on the train, and asked Griffin to have Ford Mitchell do so, and this Griffin did. Ford Mitchell carried the grip or valise to the train, and procured Douglass Einley to carry it on the train. This grip had appel-appelname on it, and witnesses testify that it was light at this time and did not have anything in it, unless some light clothing. Appellant is traced on this train to Belton, where he tells witness Barnes he is going to Temple. He is traced back from Belton to Lampasas. When he gets back to Lampasas, he hands the valise out of the car window to Ford Mitchell, and then gets off the train. Officer Mace, sees Ford Mitchell take the va-vaout of the window, and, when he at-atto arrest him, Mitchell throws the valise under the train. The officer has Mitch-Mitchto secure the valise, and when appellant is apprehended the key to the valise is se-sefrom him, and in the valise are found 12 quarts of whisky — 5 Jersey Cream, CasCas-cade, 4 Sunny Brook, and 1 Hill & 1-Iill, all bonded goods, 2 of which were intended for Griffin. It is thus made apparent appelappel-lant secured 12 quarts of whisky either in Belton or Temple, carried and transported it to Lampasas, and handed it to Ford Mitchell. These facts we think the record bebe-yond question.

Bill of exceptions No. 4 is not in the record before us, and in bill No. 5 appellant complains of the fact that the court allowed the district attorney to open the valise in the presence of the jury and introduce it and its ! contents in evidence, on various grounds. This valise had been identified as the one carried to the depot by Ford Mitchell and placed on the train by Douglass Finley, aá the valise handed out of the car window to Ford Mitchell, and which the officer secured from him at the time of the arrest. The officers testified it was in the same condition that it was in at the time it was taken from Mitchell’s possession, and under such circumstances there was no error in admitting it and its contents in evidence. ¡

It also appears by another bill that, when Mr. Mace testified that the bottles contained whisky, the defendant objected to him being permitted to so testify, “because the bottles were sealed up,” and the contents was the best evidence. The court then permitted the district attorney to unseal one of the bottles and hand it to the witness Mace, who then swore that he knew it contained whisky. As appellant was being prosecuted for carrying, transporting, and delivering whisky in prohibition territory for illegal purposes, there can be no question of the admissibility of this testimony. It would settle, and did settle beyond question, as to what was the contents of the.valise.

Appellant also objected to Officer Mace being permitted to testify:

“I saw Ford Mitchell going to the negro coach, and saw a negro’s arm handing this grip out to him, and when Ford Mitchell saw him, he (Ford) run and shot the grip under the coach”

—the objection being that it was not shown that it was defendant who handed the grip to Ford. Several witnesses testify that there were but two negroes in this coach when it got to the depot — appellant and John Barnes. John Barnes testified that when he went out of the coach he left appellant, and appellant alone, in the coach. The grip had appellant’s name thereon, and by exclusion at least the evidence makes it virtually impossible for it to have been any other person than appellant who handed it out. The facts and circumstances render it as certain as it is possible for circumstantial evidence to show any fact. It excludes every other reasonable hypothesis.

The contention that it was not shown to be appellant’s grip cannot be sustained. The evidence, and all the evidence, shows this beyond question. Neither did the court err in permitting the entire contents of the grip, the 12 bottles of whisky, to be introduced in evidence, even though appellant was charged with carrying, transporting, and delivering only one bottle. The evidence was res gestee of and a part of the transaction alleged.

Appellant objected to the charge of the court in one particular only. The indictment alleging that appellant “did carry, transport, and deliver,” he insists the court erred in authorizing a conviction if the jury found appellant “carried, transported, or delivered”— this time contending that the indictment al- ! ¡ leged only one offense, and appellant must be shown to have carried, transported, and delivered, all three, before a convictioh could be had, while in the motion to quash he had contended that it charged three separate and distinct offenses. As before stated, if several offenses are embraced in the same general definition, and are punishable in the ■ same manner, they are not distinct offenses, and may be charged conjunctively in the same count, yet a conviction may be had if the offense is committed in either of the ways alleged. Copping v. State, 7 Tex. App. 61. This rule of law has always been followed in this court, and is stated to be the correct rule by Mr. Bishop and other text-book writers.

The court did not err in refusing the peremptory instructions requested, nor did he err in refusing the instructions that if a delivery was not made to Horace Griffin in person to acquit. -We are of the opinion that, under the facts and circumstances in this case, the delivery to Ford Mitchell was a delivery to Horace Griffin; but, if that be not a correct deduction from the evidence, • a conviction would be authorized under the other means alleged in the indictment of violating the law. We do not think the evidence raises the question of appellant being an agent of Horace Griffin, but, on the other hand, shows an illegal solicitation of an order for the sale of intoxicating liquor, which contemplated a delivery by appellant to Griffin of the liquor in prohibition territory, and as he received a profit over and above the price of the whisky —55 cents — this would constitute a sale in the prohibition territory. But inasmuch as my Associates on the bench hold that the evidence would not support a finding that it was a sale (in which view I do not concur), the evidence beyond peradventure of doubt shows that appellant approached Griffin and, to use Griffin’s own language, the following took place:

“I know Cooper Johnson. I saw him in Lampasas about the 11th day of last March. I was employed then at the Wachendorfer Hotel. It was before noon. He said he was going down the road, either to Temple or Bel-ton. It was in the morning, before the Santa Fé was due. He asked me if I wanted to send down there for some booze. I gave him $2.55. It was for two quarts. I told him to bring me two quarts of bonded whisky. I said Hill & Hill or Jersey Cream. I gave him $2 for whisky and the 55 cents was for railroad fare. He did not say what the railroad fare would be, but said my part was 55 cents. He said he would be back that evening.”

Taking all other facts and circumstances in evidence, the writer thinks it but a cloak for a sale, and if a proper submission of the issue, under an indictment charging him with making a sale, had be.en given the jury, he would sustain a finding that it was a sale. However, as my Associates view the testimony otherwise, I will not place the affirmance on that ground, but will discuss the case from their standpoint, that it made appellant the agent of Griffin. This I do not understand to be a correct view, since section 6 of tbe Allison law makes it a felony to solicit of take orders for whisky in prohibition territory. Under the evidence he could be prosecuted for soliciting this order from Griffin for whisky, getting thereby a part of his railroad fare paid, to say the least, and this court would sustain such conviction, and, therefore, he would be carrying and. transporting this whisky for an illegal purpose, to fill an order he had theretofore solicited.

But, in the event it is held that he by these acts was merely the agent of Griffin, and that he was merely carrying the whisky to his principal, having no other connection therewith, the evidence in this case wholly fails to show what use Griffin intended to put the whisky to when he received it, and the question of whether one can have whisky shipped to him for personal use is not raised by the evidence, and need not be and should not be discussed. Griffin testified he was not a member of Cooper Johnson’s family; that he was not a minister of the gospel; in fact, there is no evidence tending to bring appellant within the exceptions — that he was carrying or transporting it to Griffin for any of the purposes which have been excepted from the provisions of the law. Section 4, as applicable to this case, reads:

“Except as otherwise provided in this act, it shall he unlawful for any person * * * to ship, transport, carry or deliver any intoxicating liquor to any other person, * * * in this state.”

The offense is thus defined, and in the indictment it is not necessary to negative any of the exceptions. And when the state, proves on the trial that the person on trial did carry and transport to another in prohibition territory Intoxicating liquor, it has made its case. If the defendant wishes to bring himself within any of the exceptions, he must offer some proof, else.the issue is not raised. If one kills another, upon proof of that fact, the state has made its case. If a defendant relies upon that portion of the statute which exempts him from punishment,- he must offer proof of that fact; otherwise the issue of self-defense is not raised. If one carries a pistol, proof by the state that he did have a pistol, makes its case; if appellant relies on the exceptions, that he was a traveler, or that he was merely carrying it to his home, he must offer proof of that fact, else the issue is not raised, and a conviction is authorized on mere proof that he had a pistol.

' So in this case, when the state proved that appellant had carried and transported whis-ky from Temple or Belton for delivery to Griffin in Lampasas (where prohibition prevails) the state has- made its case, and a conviction was authorized and will be sustained. If appellant desired to bring himself within any of the exceptions, being separate articles of the statute, and not included in the definition of the offense, he should have offered some proof. The record is plain that appellant carried it to be delivered to Griffin; the record is silent as to the use Griffin intended to put the liquor to. So the question of whether one may carry or transport liquor to another in prohibition territory for the personal use of such person is not raised, nor even suggested, by the testimony, and therefore we do not deem it necessary to discuss that question. And the mere fact that appellant was the mere agent of Griffin does not raise that question, when there is no evidence as to the use Griffin intended to put the whisky to. Griffin himself had no right to carry the whisky into the territory, except for his own use, and his agent could have no greater right than the principal, and if Griffin had carried the whisky into the prohibition territory, and the state proved that fact, he could be convicted, unless he should offer some evidence that it was for his own use, or the use of members of his family. And as there is no testimony that the whisky was so intended to be used, even if appellant should be held to be merely an agent of Griffin, we will not discuss that theory of the case, although my Associates do so, taking opposite views on that question.

The only other bill of exceptions in the record complains of the action of the court in refusing to give a special charge wherein appellant requested the court to charge the jury that they should acquit unless they found beyond a reasonable doubt that appellant carried,, transported, and delivered the liquor to Griffin — that is, did all three things alleged. This is not the law, for he could be convicted for having done either of three things alleged.

The facts in this ease, to our minds, show that the whisky was being carried into Lam-pasas county for a purpose prohibited by ■law. The evidence shows that appellant approached Horace Griffin and asked if he wanted some whisky, and Griffin told him he did — he wanted two quarts. Appellant accepted the money for the whisky, with an understanding that he was to secure the whis-ky and deliver it to Griffin in Lampasas. He not only accepted the price of the whisky, but collected 55 cents extra — getting a profit over and above the price of the whisky for himself. The facts show an illegal transportation and carriage. There has never been any doubt in our minds, and since the passage of the Webb-Kenyon Act (U. S. Gomp. St. 1913, § 8739) we do not think there can longer be any question, that a law of the state prohibiting the carrying and transportation of intoxicating liquors into prohibition territory for the purpose of making illegal sales thereof, or for any other illegal purpose, is valid and violative of no provision of the Constitution, either state or federal.

Being of the opinion that the law prohibiting the carrying, transportation, and delivery of whisky into prohibition territory for the purpose of making sales thereof in violation of law, or for any other illegal or unlawful purpose, is valid, and that the evidence in this ease makes it clear that appellant was carrying and transporting this whisky into prohibition territory for an illegal purpose, the judgment is affirmed.

PRENDERGAST, P. J.

(concurring.)

As the indictment alleged, and the proof showed, appellant procured intoxicating liquor from some other point in this state, and did “transport, carry, and deliver” it to Griffin in Lampasas county, in this state, where prohibition was in effect, he is guilty, and I agree to the affirmance of the judgment. To “transport” means exactly the same thing as to “carry.”

I base my concurrence in the affirmance of the judgment solely on the ground that appellant carried and delivered the liquor to Griffin in prohibition territory, wholly regardless of what use Griffin, had for it, or intended to put it to, and wholly regardless of what appellant did, other than that he carried it and delivered it to Griffin. Section 4, Allison Act, approved August 21, 1913, p. 62. There is no evidence which shows or tends to show that Griffin intended the liquor for any unlawful purpose whatsoever; but, as I understand it, it tends to show he had it brought and delivered to him for his own use.

Appellant was in no way prosecuted for selling the liquor to Griffin, and, as I understand the evidence, he in no way made a sale of it to Griffin; but, as I understand the law and the uniform decisions of this court, some of which are cited in section 569, Branch’s Grim, Law, he acted in the transaction merely as the agent of Griffin and not otherwise. However, even if he had made a sale of it to Griffin, that could not affect the question, for he was in no way prosecuted for making a sale to Griffin, nor for carrying it and delivering it in Lampasas county for that purpose, but solely for carrying and delivering it to him. So, even if he illegally solicited an order for the sale of it, that could have no bearing whatever on the case, or any question in it, for he was in no way prosecuted for that offense.

The Webb-Kenyon Act of the Congress has no possible bearing on this case, or any question in it.

DAVIDSON, J.

(dissenting).

I cannot agree with the result reached in this case. Judge HARPER holds that the facts show a sale, and therefore punishable under the charge of carrying intoxicants into local option territory. Presiding Judge PRENDERGAST holds the facts do not show a sale, but only an agency on part of appellant, and nothing else. I agree with Judge PRENDERGAST on this phase of his concurring opinion. Appellant was charged with violating what is known as the Allison bill, the allegation being that he transported, carried, and delivered to Griffin whisky in local option territory. The state’s case, therefore, must rest upon these allegations. Griffin gave appellant $2 with which to buy for him two bottles 'of whisky, and 55 cents' to pay or assist in paying his railroad fare to Belton or Temple and return. Appellant bought the whisky in one of the towns mentioned for Griffin with Griffin’s money. This constituted him the agent of Griffin. I do not see how, by any possible construction of this testimony, it could be correct to hold, that appellant sold Griffin the whisky. If it was a sale, appellant violated the local option law in Lam-pasas county; but he was not charged with this offense, and the facts do not support it. The authorities sustaining my views of it are found collated in Mr. Branch’s work on Criminal Law, § 569. Quoting from that work:

“If defendant is in no way interested on behalf of the seller, but is simply acting as agent of prosecutor, he is not guilty of making a sale.” Key v. State, 37 Tex. Cr. R. 78, 38 S. W. 773; Reed v. State, 44 S. W. 1093; Crawford v. State, 76 S. W. 576; Blasingame v. State, 47 Tex. Cr. R. 587, 85 S. W. 275,; Rector v. State, 90 S. W. 41; Short v. State, 49 Tex. Cr. R. 244, 91 S. W. 1087; Bowman v. State, 35 S. W. 382; Brignon v. State, 37 Tex. Cr. R. 71, 38 S. W. 786; Kirby v. State, 46 Tex. Cr. R. 584, 80 S. W. 1007; Way v. State, 36 Tex. Cr. R. 40, 35 S. W. 377; Gaston v. State, 102 S. W. 116; Hood v. State, 35 Tex. Cr. R. 535, 34 S. W. 935; Crawford v. State, 58 S. W. 1006; Johnson v. State, 44 S. W. 834; Phillips v. State, 40 S. W. 270.

It was also held, if there is evidence that the accused bought liquor from another as agent of the purchaser and that he was in no way interested on behalf of the seller, it is error to refuse a charge affirmatively presenting this issue. Campbell v. State, 37 Tex. Cr. R. 572, 40 S. W. 282; Treue v. State, 44 S. W. 829; Strickland v. State, 47 S. W. 721; Driver v. State, 48 Tex. Cr. R. 20, 85 S. W. 1056; Golightly v. State, 49 Tex. Cr. R. 45, 90 S. W. 26, 2 L. R. A. (N. S.) 383, 122 Am. St. Rep. 779, 13 Ann. Cas. 827; Evans v. State, 55 Tex. Cr. R. 450, 117 S. W. 167; Wright v. State, 35 Tex. Cr. R. 582, 34 S. W. 935. These authorities settle the question that this was not and could not constitute a sale. If any illegality existed or could possibly arise under the facts of this case, it was that appellant bought whisky in Temple or Belton for Grif fin and carried it to him at Lampasas, and was therefore acting as his agent. If he violated any law, it is that clause of the Allison bill which prohibits transporting, carrying, and delivering whisky in local option territory. Judge PRENDERGAST holds this part of the Allison bill valid. With this view I cannot concur. Some of our courts have gone far enough to say that the citizen may be punished for storing intoxicants in local option territory for illegal selling purposes, and this seems to rest upon the theory that this can be prevented because of anticipated sales to occur in the future. That question does not arise in this case, because the evidence is conclusive that the whisky belonged to Griffin and was carried by his agent, appellant, to him in Lampasas county.

So we have this question: Can a citizen be punished by confinement in the penitentiary for carrying whisky into local option territory with no possibility of violating the local option law?' The Allison law is dependent for its existence on the local option law. When the local option law passes out, that dies for want of something to keep it alive. With whatever far-reaching power and authority. the Legislature may be clothed under the Constitution of Texas (article 16, § 20), that power is circumscribed to prohibiting selling in local option territory. There is no question, I would suppose, at this late day in Texas that this law does not authorize the punishment of the citizen for giving away whisky aiid cannot legally — the Allison bill to the contrary notwithstanding. Under ali the authorities it has been held that the giving of intoxicants in local option territory could not constitute a violation of that law. This has been held even as to giving it to minors. If the party gave to minors, he would have to be punished for violation of the local option law. Atkinson v. State, 40 Tex. Cr. R. 229, 79 S. W. 31, 3 Ann. Cas. 839 ; Tracy v. State, 48 Tex. Cr. R. 50, 85 S. W. 1056; Tompkins v. State, 49 Tex. Cr. R. 155, 90 S. W. 1019. This court has held the Legislature had no authority to authorize an election to determine whether the gift of intoxicating liquors shall be prohibited— whether the gift was with intent to evade the law or not. Holley v. State, 14 Tex. App. 505; Bottoms v. State, 73 S. W. 16; Steele v. State, 19 Tex. App. 425. It was also held in Stallworth v. State, 16 Tex. App. 345, that an indictment for ordinary local option violation which charges a gift charges no ’ offense. For many cases deciding this particular phase of the law, see Branch’s Criminal Law, § 567.

As I understand the law, viewed in the light of the constitutional guaranty and wording of section 20, art. 16, the Legislature-cannot prohibit the citizen of this state from conveying to his friend, or giving to his-friend, or to his principal as his agent, intoxicating liquors in local option territory, so-long as he does not violate some of the inhibitions with reference to sales or illegal matters of that character. An accused does not have to prove his innocence; the state must prove guilt to secure a conviction. In other words, the Legislature cannot make it a felony and incarcerate our citizenship in the penitentiary, even in local option territory, where one friend gives to another intoxicants, or where one citizen gives to another citizen intoxicants, or buys it as agent of the principal; and I understand the law to be further that the Legislature cannot abrogate or abolish the law of principal and agent; that the . Legislature is powerless to abolish the law and doctrine of agency. If appellant was guilty, I do not understand' why Griffin was not, on the theory of agency. Griffin could be an accomplice on that theory. This certainly would pass even the limit of the power of the Legislature. The principal may do through his agent what he himself may do. The Allison law authorizes the principal to carry the whisky into local option territory for his own use. I therefore-agree with Judge PRENDERGAST that appellant was only the agent of Griffin, but disagree with him as to his conclusion of the validity of the Allison bill on this question, and disagree with Judge HARPER that the facts constituted a sale by appellant to-Griffin.

With due deference to the opinion of my Brethren, I respectfully enter this dissent.  