
    WEST v. STATE.
    (No. 7074.)
    (Court of Criminal Appeals of Texas.
    Jan. 10, 1923.
    State’s Rehearing Denied March 7, 1923.)
    1. Intoxicating liquors <©=>138 — “Transport” and “transporting” embrace movement of liquor by accused.
    The words “transport” and “transporting,” in the statute as to "unlawful transportation of intoxicating liquor, embrace movement of the liquor by accused on his person or in some vehicle under his control as an essential element of the offense.
    IBd. Note. — Eor other definitions, see Words and Phrases, Eirst and Second Series, Trans-p ort — Transp ortation.]
    2. Intoxicating liquors <S=»236(2.0)t — .Evidence held insufficient to sustain conviction of transporting.
    Evidence held insufficient to sustain a conviction of unlawfully transporting intoxicating liquor; there being no direct proof that defendant moved the suit case in which the liquor was found, or a quart of whisky found in his pocket, or acted with another to whom the circumstances pointed as the owner and possible transporter.
    Appeal from District Court, Bastrop County; R. J. Alexander, Judge.
    A. P. West was convicted of unlawful transportation of intoxicating liquor, and he appeals.
    Reversed and remanded.
    A. M. Belts, of Elgin, and Hart & Patterson and White, Wilcox & Graves, all of Austin, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The conviction is for the unlawful transportation of intoxicating liquor ; punishment fixed at confinement in the penitentiary for a period of two years.

Appellant and a negro were arrested about 10 o’clock at night, and at the same time, the officer making the arrest took possession of a suit case containing a quantity of whisky. At the time of the arrest, they were near a store svhich the officer called a “commissary” in a village in Bastrop county, and the suit case was on the gallery in front of the store. Some time before the arrest, the officer had passed the place and had observed no one present. Later he saw the appellant (a white man) and a negro with a suit case sitting between them. He went to the telephone, and on his return the parties had started away, and they had gone a few steps when he arrested them.

In addition to the whisky which was contained in the suit case, the appellant had a bottle in his pocket. Some time- during the day previous to the arrest, the negro had approached the officer and sought permission to sell whisky. The officer had acquiesced and had bought a quart of whisky from the negro, agreeing to pay him $8 for it. This procedure, according to the officer, was for the purpose of detection. Before buying the whisky, the negro had given the officer a drink.

At the time of these transactions, the appellant and the negro were not together. Later the negro stated to the officer that the white man wanted his money for the whisky, and the officer later saw the white man and the negro knock at his (the officer’s) door.

In the conversation between the officer and the negro, the appellant was not named, nor was he described other than that the negro said that he and a white man had some whisky that they wanted to sell, and later that the white man wanted his money. The officer said categorically that he did not see the appellant move the whisky at all, and that he could not say whether the bottle which was on the appellant’s person was gotten from the negro or elsewhere.

The two Mexicans who assisted in making the arrest testified that it was made on the porch of the commissary, that the white man was lying down with his head on the suit case, and that the suit ease contained several bottles of whisky.

However the word “transport” or “transporting” as found in the statute may be comprehended, it is conceived that any definition would embrace the movement of the liquor by the accused, either on his person or in some vehicle under his control. The appellant in the instant case is apparently convicted without adequate proof of this essential element of the offense. There is no direct proof that he moved the suit case, and, in fact, there is no direct testimony that he owned it. It is only by circumstances that his possession or his interest in it is revealed. The transactions of the officer were with the negro, and it is upon the negro's declaration, made to the officer, that reliance is had to connect the appellant with the ownership of the whisky. From whence the whisky came, and to whom the suit case had previously belonged, the record' is silent. The circumstances point with cogency to the negro as the owner of the whisky, and possibly in connection with his declaration to the officer the inference may be drawn that he brought it to the place where it was found.

We fail to discern in the record, however, testimony which would show, beyond a reasonable doubt, that the appellant had personally handled the suit case at all; nor do we deem the circumstances of sufficient cogency to show that in the matter of transporting the liquor he and the negro acted together. We believe that the evidence upon which the conviction rests is not sufficient to overcome the presumption of innocence.

The judgment is therefore reversed, and the cause remanded.

On Motion for Rehearing.

State’s counsel insist that, though the evidence may not be adequate to show that appellant transported the suit case containing the whisky, it is sufficient to support the theory that he transported the quart of whis-ky which was found in his pocket. The negro from whom the officer had bought some whisky was seen on the gallery of what is called the “commissary,” and a white man was with him. The suit case was on the gallery. The evidence is silent touching any removal of the suit case which contained several bottles of whisky.

The state relies upon the declaration of the witness Garza that—

“We got a suit case containing several bottles of whisky from them, and one bottle out of the white man’s pocket. * * * They were near the porch of the commissary when we arrested them” i

and upon the testimony of Soto, the officer who made the arrest, that—

“ * * * the defendant and the negro, Jesse Gardley, had started away and had only gone a short distance. I followed them and arrested them. * * * I took from them the suit case, * * * which contained ten botth-s of corn whisky, and the white man had one bottle of corn whisky in his pocket.”

The witness testified further:

“I simply arrested him and found the whisky on him, but can’t say where nor when he got it, and can’t say whether he got it from the negro on the commissary gallery or not, and can’t say he moved the whisky any distance whatever.”

Neither of the witnesses explained what they meant by a short distance, nor did they make it plain that the suit case was moved at all, and from the state of tire record we are unable to reach a different conclusion from that expressed in the original opinion.

The motion is overruled. 
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