
    WATERHOUSE v. STATE.
    (No. 8495.)
    (Court of Criminal Appeals of Texas.
    June 25, 1924.
    Rehearing Denied Nov. 5, 1924.)
    1. Intoxicating liquors <@=>238(I) — Refusal of defendant’s peremptory instruction held without error.
    In a prosecution for transporting intoxicating liquor, refusal of defendant’s peremptory instruction held, in view of evidence, without error.
    2. Criminal law’ <S=>8I4(6) — Refusal of oharge not called for by facts held without error.
    In prosecution for transporting intoxicating liquor, refusal of charge that intent was element in every criminal case held without error, where there was nothing in facts to suggest an innocent intent.
    3. Criminal law (gc=>I I74( I) — Refusal of jury’s request to define terms held harmless, where defendant made no request and was guilty.
    Where evidence showed beyond question that defendant was guilty of transporting intoxicating liquor, and no special charge was presented, refusal to comply with jury’s request after retirement that court define transferring and transporting, if error, could not be complained of.
    4. Criminal law' ©=>203 — Conviction of one of two for transporting liquor not defense in prosecution against other.
    Two or more united in knowledge and purpose may be guilty of transporting intoxicating liquor, and fact that one was convicted therefor, or of perjury alleged to have been committed at trial, would not be defense as to the other.
    5. Intoxicating liquors <®=»236(20)—Evidence held to sustain conviction for transporting.
    Evidence held to sustain conviction for transporting intoxicating liquor.
    On Motion for Rehearing.
    6. Criminal law <®=»778(5)—Charge held not to shift burden of proof to defendant.
    Charge that, if jury found that defendant did not transport liquor about time charged, or if jury had reasonable doubt as to whether he did, they should give him benefit thereof, did not shift burden from state to defendant.
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    Will Waterhouse was convicted of transporting intoxicating liquor, and he appeals.
    Affirmed.
    Y. E. Middlebrook, of Nacogdoches, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

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

There are five bills of exception in the record. The first complains of the refusal of a peremptory charge in favor of the accused. Erom our discussion of the sufficiency of the testimony later, it will be gathered that we think the court did not err in refusing to give this charge.

The second bill presents the refusal of a special charge to the effect that intent is an element in every criminal case, and that, unless the jury believed the defendant transported the liquor beyond a reasonable doubt, and that he was transporting it for an illegal purpose, they should acquit. Such charge was not called for by the facts.. While in some eases guilty knowledge might become an issue, it would be misleading and ■confusing to instruct the jury broadly in a case like this that intent was a necessary element. The other phases of said special charge were fully covered by the main charge.

The third bill of exceptions complains of the court’s refusal to comply with the jury’s request in their retirement that, he define “transferring” and “transporting.” In view of the fact that the evidence shows beyond question that the acts of appellant amounted to a transporting, and no special charge had been presented, giving any definition of same, we are of opinion that appellant does not show himself entitled to complain, even if the refusal of the court was technically erroneous—a fact of which we are not satisfied.

That Tom Hunt, who had been in a buggy with appellant, and who was arrested at or about the same-time, had been indicted for perjury growing out of the trial of a charge against said Hunt for his part in this, liquor transaction, or that Hunt had been convicted for his complicity therein, would not seem available to appellant, or to in any way militate against the proposition of his guilt. Two or more men who are united in knowledge and purpose may each be guilty of transporting intoxicating liquor, and the fact that one had been convicted of such offense, or of perjury alleged to have been committed by him upon his trial for such offense, would be no defense to the other.

The fifth bill of exceptions complains of the charge, wherein it stated that, if the jury found that defendant did not transport intoxicating liquor, or had a reasonable doubt as to whether he did or not, they should give him the benefit of the-doubt and acquit him. As we understand this record, this was an effort on the part of the learned trial judge to give an affirmative charge on the only defensive theory which appears, viz. that appellant did not in fact transport the liquor, but that, if it was transported, Tom Hunt did so; and we see no valid objection to said charge and fail to comprehend how it placed any burden upon appellant.

On the sufficiency of the testimony, we note that appellant took the stand and swore that on the day in question Tom Hunt proposed to him to come and go with him, and they would get “some.” They drove out about ,4 miles in the country, to a point where. Hunt left appellant and came back1 with a jar of shinney. After taking a drink they put the jar in the buggy' and drove on back,: stopping every now and then to take another drink. About the time the car got near the depot in town, the horse, being pretty much left to his own sober devices, ran the buggy into a post and spilled all-, the contents of said buggy, except the.shin-. ney. Appellant said that Hunt was cursing, and that he got shy, but still' he did not want Hunt to get away with that shinney;,-so, when Hunt and a boy named Holman got back in the buggy and started away, appellant “cut them off” and made the, Holman boy get out and let appellant get in. He testified that, when they got to. the top of a hill, he saw another buggy coming with some other negroes in it, and thought that Hunt had enough, and he would take the shinney himself. So he pitched it out of the buggy and directly got out himself, went back, got the jar of shinney, and got in the buggy with the other negroes, and started down the road in the opposite direction, but was shortly met by officers who took charge of appellant and the whisky.

Officer Rambert testified that he saw appellant and Hunt fixing the harness or' shaft of a buggy near the depot, and that both of them were drinking, and a little later he met appellant and two other negroes on the road and stopped them, and found in their buggy a tow sack containing a jar of whisky, and that he arrested, appellant and took the jar of whisky, and shortly thereafter arrestee) Hunt in another buggy. Mr. Blast testified to seeing the two negroes fall out of the buggy when they hit a post near the depot. He said that one of them — evidently, from other testimony, Hunt — went after the horse, while the other negro took something in a sack and walked away toward a warehouse out of sight of witness. The two negroes who were in the buggy with appellant at the time of his arrest testified in substance that they saw appellant and Hunt in a buggy going north and after they passed witnesses some few hundred yards they looked up the road and saw appellant waving, and they waited until he came back. He had something in a sack, and wanted witnesses to carry him to his home, to which they demurred. However, they agreed to carry him as far as the branch, and he got in the buggy with his sack, which turned out to contain the jar of liquor. They started down the road, but had gone only about 50 yards when they met the officers who arrested appellant and took charge of the whisky.

. We think it perfectly clear from this testimony that appellant was guilty of the offense charged. Not -only did he go some 4 miles with Hunt aiding and agreeing in every way to the transportation of the liquor, but it appears that when they were thrown out of the buggy appellant carried the liquor across to some point, after which he got in the buggy with Hunt. Not only does it appear that they went down the road together a distance which is not shown in the record, but it seems clear that appellant then made up his mind that he would appropriate the jar of whisky himself, and that he got out of Hunt’s buggy and went several hundred yards down the road to where he overtook the other two negroes, and that he then started from that point home, in which enterprise he had only gone about 50 yards when the officers arrested him. These facts need no further discussion.

Believing appellant to have had a fair 'trial, arid that the facts show his guilt, an affirmance' will be ordered.

On Motion for Rehearing.

Appellant renews his complaint that the charge! of the court shifts the burden from the state to him. We quote that part of the charge so attacked:

"If you find that the defendant, did-not transport intoxicating liquor about the time charged in the indictment, or if you have a reasonable doubt as to whether or not he did transport intoxicating liquor, you will give him the benefit of such doubt and acquit him.”

The quotation itself answers the complaint. Appellant cites several cases in his brief in support of the motion; but we have examined each of them and find nothing in them to support the contention.

The evidence shows beyond question the transportation of intoxicating liquor by appellant and another for a number of miles. At • some point on their journey appellant took possession of the liquor alone and carried it for several hundred yards down the road, and then got in a buggy, and went down said road several hundred yards further toward his home, and was intercepted by officers who found him with the liquor. It was not claimed that such transportation was for one of the excepted purposes. There is nothing in the record to suggest an innocent intent. The court’s refusal to charge on intent, either in the main charge or in a special refused charge, was correct. Neither was there any question as to the fact of transportation raised in the testimony, and there could therefore be no need for a definition of the term “transportation,” either originally or in answer to a question propounded by the jury.

The facts make out such a clear case of an illegal transportation of the liquor that further discussion of the sufficiency of the testimony seems needless.

The motion for rehearing will be overruled.  