
    LOTT v. STATE.
    (No. 7237.)
    (Court of Criminal Appeals of Texas.
    May 2, 1923.
    Rehearing Denied June 13, 1923.)
    1. I ntoxioating ' liquors = <&wkey; 132 — State prohibition . law held not in conflict with Volstead .Act.
    ; The Dean Law (Vernon’s Ann. Pen. Code Supp. 1922, art. 588% et seq.), forbidding, the manufacture, transportation, etc., of intoxicating liquor, is not in conflict with the Volstead Act of our national Congress.
    2. Criminal law <&wkey;394 — Testimony of1 officers making search admissible though they had no warrant.
    Testimony of officers making an arrest and searching a car for intoxicating liquors is not rendered inadmissible because the search was made without a warrant.
    3. Intoxicating liquors <&wkey;223(l) — To sustain conviction transportation need not be shown to have been for purpose of sale.
    In order tb sustain a conviction for the unlawful transportation of intoxicating liquor it is not necessary to allege or prove that the transportation was for the purpose of sale.
    4. Criminal law <&wkey;i982 — Where accused' over 25 years of age, denial of instruction concerning suspended sentence not error.
    Where it is established beyond dispute that accused was over 25 years of age at the time of the commission of -an alleged offense, it is not erroneous for the court to deny an instruction submitting to the jury’his| fight to the benefit of the suspended' sentence law.
    On Motion' for Rehearing.
    5.Intoxicating liquors <&wkey;224 — Burden on accused to establish transportation was for one of excepted purposes.
    Under Dean Law (Vernon’s Ann'. Pen. Code, Supp. 1922, art. 58814 et seq.), declaring the transportation of liquor unlawful with certain exceptions, the burden is on one accused of unlawful transportation to show that it was for excepted purposes.,
    Appeal from District Court, Webb County; J. F. Mullally, Judge.
    George Lott was convicted of transporting intoxicating liquor and he appeals.
    Affirmed.
    John A. Pope and Raymond & Pope, of Laredo, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

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

There is no dispute of the fact that, about the date alleged in the indictment,- appellant was accosted and arrested by some officers while driving a car along a public road in Webb county. Upon search it was discovered that in said car were 199 bottles of tequila, which was shown by testimony to be an intoxicating, spirituous liquor. The only defense interposed by appellant was that he met a man by the name of Sanchez, who asked him if he would take this liquor and carry it down.the road and leave it at a certain. designated point beyond the town of Encinal, and he was transporting it in pursuance of said agreement, and that he had no financial interest in the transaction whatever. Most of the questions that are raised by .appellant’s brief and record have been disposed of by us in our opinions in. other cases involving substantially the same questions.

By his bill of exceptions No. 1 appellant presents the proposition that the Dean Law (Vernon’s Ann. Pen. Code Supp. 1922, art. 588% et seq.), by which name the law of this state forbidding the manufacture, transportation, etc., of intoxicating liquor is commonly called, is in conflict with the Volstead Act of our national Congress (41 Stat. 305). We discuss this no further than to say that it has been settled against appellant in the case of Ex parte Gilmore, 88 Tex. Cr. R. 529, 228 S. W. 199.

Appellant complains by his bills of exception Nos. 2, 3, and 4 of the admission of the testimony of the officers who arrested him and searched his car, upon the ground that they had no search warrant, and such testimony was illegally obtained and admitted. We have settled these contentions against him in the case of Welchek v. State, (Tex. Cr. App.) 247 S. W. 524.

By his bills of exception Nos. 5, 6, and 7 appellant raises the question in various ways that the transportation, to be sufficiently charged and to be a violation of the law, must be alleged and proven to have been for the purpose of sale. The cases of Stringer v. State, 92 Tex. Cr. R. 46, 241 S. W. 159, and Crowley v. State, 92 Tex. Cr. R. 103, 242 S. W. 472, are decisive of these questions against appellant’s contention.

The testimony in the record showing beyond dispute that appellant was over the age of 25 years at the time of the commission of the alleged offense, it was not erroneous for the trial court to decline to submit to the jury his right to the benefit of the suspended sentence law. Davis v. State (Tex. Cr. App.) 246 S. W. 395; Robinson v. State, 92 Tex. Cr. R. 527, 244 S. W. 599.

The evidence fully supporting the proposition that appellant was engaged in the illegal transportation of intoxicating liquor, and the jury having adjudged him guilty, and the record containing no reversible error, an af-firmance must be ordered.

On motion for rehearing.

HAWKINS, J.

The indictment alleged that appellant “unlawfully transported spirituous and vinous liquor capable of producing intoxication.”

The contention is made upon motion for rehearing that, as article SSS^, Vernon’s Ann. Pen. Code Supp. 1922 (Acts 37th Leg. 1st Called Session, 1921), denounces as unlawful the transportation of intoxicating liquor, and as article SSSÜal permits such transportation for certain excepted purposes, and as the state elected to charge that the transportation in the instant case was “unlawful,” the state was required to prove that the liquor was being transported for none of the excepted purposes. The position is not tenable. Even before the statute was amended, and when it was necessary for the state to negative the exceptions, we held the burden to be on the defendant to show that he came within one of the statutory exceptions. Robert v. State, 90 Tex. Cr. R. 133, 234 S. W. 89; Shaddix v. State, 90 Tex. Cr. R. 431, 235 S. W. 602; Evans v. State, 91 Tex. Cr. R. 646, 241 S. W. 148. The rule there announced applies with more force under the present statute where the exceptions are not descriptive qf the offense, and therefore the state is not required to negative them in charging the offense or in making its proof.

The motion for rehearing is overruled.  