
    BROCK v. STATE.
    (No. 7563.)
    (Court of Criminal Appeals of Texas.
    Oct. 3, 1923.
    On Motion for Rehearing, Nov. 14, 1923.)
    I.Criminal law <&wkey;507(I) — Witness engaged with defendant in enterprise, under statute, not an accomplice.
    In prosecution for transporting intoxicating liquor, where a state’s witness was engaged with defendant in the enterprise which the state asserted to be the act of transporting, under Acts 1st Called Sess. 37th Leg. (1921) c. 61, § 2e (Yernon’s Ann. Pen. Code Supp. 1922, art. 588(403), witness would not be held to be an accomplice.
    2. Criminal law &wkey;753 (2) — Refusing defendant’s peremptory charge not error.
    In prosecution for transporting intoxicating liquors, where there was evidence that whisky was transported in an automobile in which defendant rode, there was no error in refusing defendant’s peremptory charge.
    3. Intoxicating liquors <&wkey;239(l) — Refusing instruction defining “transport” held net error.
    In prosecution for transporting intoxicating liquor, there was no error in court’s declining to instruct that “transport” means to carry; to move from place' to place.
    4. Criminal law <&wkey;304(20) — Judicial notice taken that whisky is intoxicating.
    Judicial notice is taken of the fact that whisky is intoxicating liquor.
    5. Criminal law <&wkey;i792(l) — Law of principals properly submitted.
    In a prosecution for transporting intoxicating liquor, where the state’s theory was that defendant procured liquor and placed it in an automobile, and all of party went in the automobile to a place where they were found by the marshal, in submitting to the jury the law of principals there was no error.
    6. Criminal law <&wkey;£730(I)— District attorney’s statement.in argument held not hurtful..
    In prosecution for transporting intoxicating liquor, statement of district attorney in argument that “there are men going to the penitentiary for violating this law, and others to go,” was not,’ in view of instructions not to consider it, erroneous or harmful.
    On Motion for Rehearing. ■
    7. Criminal law <®=o761(8) — Instruction .held to assume that article transported was whis-ky and on weight of evidence.
    In prosecution for transporting intoxicating liquor, where the defensive theory was that water was carried to the place where the liquor was found to dilute it for a beverage, and the state’s theory was that the liquor was transported in an automobile to the place where it was found, an instruction that if “the” whis-ky was owned or under the control of any person in the ear, or that defendant riding therein exercised no control and had no possession of “the” whisky, he would not be guilty unless he encouraged transportation of “the” whisky, was in effect an assumption that it had been transported and was on weight of evidence.
    <§=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Knox County; J. H. Milam, Judge.
    Earnest Brock was convicted of transporting intoxicating liquor, and be appeals.
    Reversed and remanded.
    D. J. Brookreson, of Benjamin, for appellant.
    R. G. Storey, Asst. Atty, Gen., for the State.
   LATTIMORE, J.

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

On the trial of this case, in addition to other testimony, tt« state used as a witness in its behalf one of the men who appears to have been engaged with appellant in the enterprise which the state asserts to have been that of transporting intoxicating liquor. Section 2c of chapter 61, Acts' 1st Called Session of 37th Legislature (Vernon’s Ann. Pen. Code Supp. 1922, art. 588%a3) reads as follows:

“Upon a trial for a violation of any of the provisions of this chapter, the purchaser, transporter, or possessor of any of the liquors prohibited herein shall not be held in law or in fact to be an accomplice, when a witness in any such trial.”

Giving effect to the terms of this enactment, it would seem clear that the witness Sams would not be held in law or in fact to be "an accomplice. Erom the testimony of Mr. Sams it is made to appear that on the 4th of July, 1922, witness and one Epley got with the appellant at a garage in Knox City. Witness was trying, to get a cable to pull his car in, and appellant told him that he had a good rope down at his slaughter pen. The party went to the slaughter pen, and appellant told witness that he ought to have something down there to drink. Appellant walked out about 20 yards and picked up a jar about three-fourths full of what looked like corn whisky, and the party got into the car and went from the slaughter pen up to the elevator, some 300 yards carrying the whisky with them. At the elevator the party were surprised by Mr. Hardburger, the city marshal, who came upon them and took possession of the liquor, which at the time of Mr. Hardburger’s appearance was being held by a man in the party of appellant by the name of Carter. Mr. Hardburger testified that the whisky in question was white corn whisky, and that this was in Knox county, Tex.

These are the material facts given in testimony on behalf of the state. Appellant denied having told witness Sams that he thought he knew where they could get some whisky, and denied producing same when they reached the slaughter pen, and also denied getting a. fruit jar containipg liquor and putting it in the car. Appellant denied knowing there was any liquor in the car, or that he had anything to do with it, if it was there.

In his charge to the jury the learned trial court erroneously informed them that the witness Sams was an accomplice, and gave to the jury the usual charge on the necessity for the corroboration of the evidence of an accomplice in order to justify a conviction, notwithstanding which the jury found appellant guilty. In the charge we also find the following:

“You are instructed that, if the whisky was owned by one or more of the defendant’s companions and was under the control of the owner, and that defendant, riding in the automobile, exercised no control and had no physical possession of the whisky, he would not be guilty, unless he, by words or acts, encouraged the transportation of the whisky.”

This seems to us to present favorably to appellant the defensive theory in the case.

We do not think the trial court erred in refusing appellant’s requested peremptory charge in his favor, nor that error appears in the court declining to instruct the jury that transport means to carry; to remove from place to place. If the testimony of the state be believed by the jury, there could be no question of the fact that the liquor testified about was moved from place to place by the party in the car after appellant had produced same. We do not believe it any error to decline appellant’s requested instruction that it was no offense to transport any liquid other than intoxicating liquor. This court is thoroughly committed to the proposition that it takes judicial notice of the fact that whisky is intoxicating liquor. There was no testimony in the .case to refute that of Mr. Hardburger that the liquor found by him was whisky.

The trial court committed no error in submitting to the jury the law of principals. The car seemed to belong to a man by the name of Epley, who was driving same. According to the state’s theory, appellant procured the liquor and placed it in the car, and the whole party went together in the car to the place where they were found by Mr. Hardburger. This would appear to present a state of facts upon which the court properly charged the law of principals.

Complaint is made that the district attorney in his closing argument to the jury said, “There are men going to the penitentiary for violating this law, and others to go,” and that this language was excepted to, and the court, asked to instruct the jury not to consider it. We are not led to believe that the statement was of any matter materially erroneous or hurtful to the appellant.

We are of opinion that the evidence was sufficient to justify the conclusion reached by the- jury, and that none of 'the matters complained of present reversible error, and an affirmance is ordered.

On Motion for Rehearing.

By some means that which constituted the defensive issue in this case, and presenting which a special charge was asked in the trial court, and for failure to present which an exception was taken to the charge of the court , below, escaped our attention upon the original consideration of this case, and must have escaped that of the usually very careful trial judge. The. defensive theory referred to was that, if any liquor at all was carried from one place to another in the car occupied by appellant and others on the day in question, said liquid was water, and was not whisky.

It appears from the testimony of the officer who arrested appellant, that he came upon the party at an elevator and found them there in possession of some whisky. It seems that the officer had been watching said parties before and saw four of them drive down a road which went by the elevator in question. The officer went and got his horse, and rode out in the direction taken by said parties. About the time he reached the elevator, he saw the party in the car coming back —saw them drive up to the elevator near an engine room. When he got to them, appellant was standing by the car, and in the engine room he found a Mr. Carter in possession of a fruit jar of whisky, and a Mr. Sams holding a bottle, and also a Mr. Epley in there with them. The officer took charge of the whisky and some of the party. Witness Sams testified, for the state, that on said occasion the party at the elevator had what was supposed to be corn whisky. This witness stated, on the occasion when they were discovered by the officer, that they had been down to a well, and that this appellant left the car, and went out about 20 yards, and picked up a'jar about three-fourths full of what looked like corn whisky, and that they could not find anything to dilute it with, so they went up to the elevator, where they were doing what they could to get it in shape to take a drink when the officer came up. He said they carried the whisky from the well up to the elevator, about 300 yards.

For the defense, appellant and a man named Carter, who was in the party, testified that, when they went from town down to the well, they carried nothing at all, but that at the well they got some water in a fruit jar and carried it back up to the elevator, where they knew some good corn whisky would be found; that this corn whisky was in a fruit jar in the engine room, and that when he and two others of the party got out of the car at the elevator they went into the engine room, took up the fruit jar containing the whisky, and were in the act of trying to mix some of it with the water which they had brought from the well, when the officer appeared and confiscated the liquor. Appellant and his witness both denied the trans-. portation of anything on said occasion, except the water from the well to the gin house. We quoted in our original opinion a part of the charge of the learned trial court to which an exception was taken at the time of trial, upon the ground that it was on the weight of the evidence and invaded the province of the jury, and that same ignored the defensive theory in the case, and failed to present it, and also that said charge ignored the appellant’s explanation of what was claimed to be his transportation of whisky. Appellant also presented to the court the following special charge:

“You are instructed that the indictment in this ease charges the transportation of intoxicating liquors, and that it is no offense to transport any other liquid than intoxicating liquors, and unless you find beyond a reasonable doubt that the defendant transported intoxicating liquors, you will acquit the defendant, or if you have a reasonable doubt as to whether defendant transported intoxicating liquors, or some other liquid, which other liquid was not intoxicating you will give the defendant the benefit of the doubt, and acquit the defendant, and say by your verdict not guilty.”

It thus appearing that, the contention of appellant and his witness being that there was no whisky transported from the well to the elevator, but that the liquid so transported was water, it appears that that portion of the main charge complained of is subject to the objection máde thereto, and that an instruction to the jury that “if the whisky was owned by one or more of the defendant’s companions, and was under the control of the owner, and that defendant riding in the automobile, exercised no control and had no physical possession of the whisky, he would not be guilty unless he, by words or acts, encouraged the transportation of the whisky,” would be in effect an assumption on- the part of the trial judge that the article transported from the well to the elevator was whisky, and said charge would thus be open to the criticism that it was on the weight of the evidence. The special charge above referred to, in the absence of any affirmative presentation of the defendant’s theory of the case in the main charge, should have been given.

Having become convinced that we were in error in our former opinion, same will be set aside, and the judgment of the trial court will be reversed, and the cause remanded.  