
    DUNLAP v. STATE.
    (No. 9312.)
    (Court of Criminal Appeals of Texas.
    June 10, 1925.)
    
      1. Intoxicating liquors <§^3 138 — Interest in intoxicating liquor not element of charge of transportation.
    There was no error in refusing charge that accused would not be guilty of transportation of intoxicating liquor unless he had an interest in such liquor.
    2. Criminal law <®=3j830 — • Requested charges containing erroneous statements of law properly refused.
    Defendant’s' special charges, which contained erroneous statements of law, were properly refused. •
    3. Criminal law <S=j8I4(I7) — Charge on circumstantial evidence properly refused.
    In prosecution for transportation of intoxicating liquors, where state’s case was bottomed on direct testimony of officers that defendant had been driving automobile containing liquor near which hé was arrested, charge on law of circumstantial evidence was properly refused.
    4. Criminal law (⅜=31159(3) — Conviction supported by evidence not disturbed.
    Conviction of transportation of intoxicating liquors, supported by substantial evidence, will not be disturbed; conflicts in testimony being for jury.
    Appeal from District Court, Lubbock County; Clark M. Mullican, Judge.
    J. B. Dunlap was convicted of .transportation of intoxicating liquoís, and be appeals.
    Affirmed.
    Vickers & Campbell, of Lubbock, and J. P. Word, of Meridian, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTTMORE, J.

Conviction in district •court of Lubbock county for transportktion of intoxicating liquors; punishmént, one year in penitentiary.

No bill of exceptions appears in the record. The exceptions taken to the court’s charge set out that same were properly presented to the court, and, upon the court’s refusal'to correct the charge, an exception was taken. The exceptions so taken are mainly to the failure of the court to tell the jury that appellant would not be guilty unless he knew the intoxicating liquor was- in the car when he drove it. This is phrased in another exception differently by stating that the court does not submit affirmatively the defensive issues, but it amounts to the same thing. Either the exception was without merit or the charge of the court was corrected in response thereto, for paragraph 5 of the main' charge is as follows:

“Before you can convict the defendant in this case, you must believe from the evidence, beyond a.reasonable doubt that he knew that liquor was in the automobile, and that he transported same, as alleged in the indictment, and, if you have a reasonable doubt of this fact, you will give him the benefit of such doubt, and say by your verdict not guilty.”

Appellant requested four special charges. A charge instructing the jury that the accused would not be guilty of transportation of intoxicating liquor unless he had an interest in such liquor would manifestly be incorrect. One may grossly violate the law against, transporting intoxicating liquor, who has no interest whatever therein. Each of the first three special charges asked were properly refused because they contained this erroneous statement of the law. The fourth special charge sought to have the jury instructed on the law of circumstantial evidence. In our opinion this is not a case dependent on that character of testimony. Two officers were in an alley, and a Eord car came along in same. It was being driven by a man named Martin. When at a point near where the officers were, the car was stopped, and Martin got out of same. Both officers testified that appellant was in the car and then took the wheel and drove the ear out of the mouth of the alley, and onto the street, where he stopped the car. The officers followed him and arrested him at or near the ear. Search of the car disclosed the presence of a gallon glass jug of whisky, a two-gallon white jug of the same liquor, and a bottle with whisky in it, and also two empty bottles, in the car. When the officers approached the car, according to their testimony, appellant drew an automatic pistol upon one of the officers.

Appellant defended upon the proposition that he did not drive the car to the point where he was arrested, and had no connection with or knowledge of the fact of there being any whisky in it. He testified that he came to Lubbock on the day of his arrest with Martin, the man whom the officers said got out of the car just before they arrested appellant, and that on the way to Lubbock they picked up another man who put something in a gunny sack in the back of the car. He testified that after reaching Lubbock, Martin agreed for the stranger to use his car and drive it around town. Later he said that he saw Martin, who told him to watch out for his car and tell the man who had it that he (Martin) wanted it. This appellant agreed to do. He further testified that later the stranger came along in Martin’s' car, and that he told turn that Martin wanted said car, and that said stranger agreed to drive the car to where Martin was. Appellant said he got in the car with this stranger, who drove over into the southwest part of Lubbock; that witness was not familiar with the town; that when they got over in that part the stranger got out of the car and pulled a pistol out of his pocket and handed it to witness and told him to keep it until he got hack; and that witness took the pistol and put it in his overcoat pocket, whereupon the stranger got out of the car and witness had not seen him any more. He said that about five minutes after the stranger stopped the car the officers came up to it and arrested him. He denied drawing the gun on the officer. He averred that he did not drive through the alley with Martin, and claimed that he knew nothing about the liquor. He swore that he did not know Martin was in the immediate neighborhood of the place where he was arrested, and said he had not seen Martin since in the afternoon. He admitted being in the car where the liquor was, but said that he could not' drive a car and did not know how to use the pistol which the officers found in his possession. of it

The reconciliation of conflicts in the testimony is a matter for the jury, and, unless the verdict be without support, or so manifestly contrary to the testimony as to indicate lack of calm judgment on the part of the jury, we decline to disturb such verdicts. The story told by appellant does not comport with reason, but is more in harmony with many of the ridiculous stories that appear in records here, in which men found in possession •of liquor in violation of law attempt to make hasty and unreasonable explanations.

Being unable to agree with any of appellant’s contentions, the judgment will be affirmed. 
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