
    MENDOSA v. STATE.
    (No. 10379.)
    (Court of Criminal Appeals of Texas.
    Dec. 15, 1926.
    Appeal Reinstated Jan. 26, 1927.)
    1. Criminal law <©=>1023(9) — Court cannot pass on questions raised on appeal, where conviction was without sentence;
    In absence of sentence, court cannot, in prosecution for transporting intoxicating liquor, pass on questions raised on appeal.
    On Motion to Reinstate Appeal.
    2. Criminal law <@=>459 — Nonexpert witnesses, by tasting and smelling, may testify whether cansí contained alcohol.
    In prosecution for transporting intoxicating liquor, admitting testimony of officers who were not experts as to whether container contained alcohol held not error, where officers tasted and smelled contents.
    ,3. Criminal law <@=3368(I)— Statement of porter that he brought can of alcohol to defendant, made on arrest, held part of “res ges-te.”
    ,In prosecution for transporting intoxicating liquor, statement of negro porter, made at time of arrest, that he brought container to defendant held admissible as part of res gestae.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Res Gestae.]
    4. Criminal law <@=>792(2) — Where defendant received alcohol from companion and walked away with it, case held properly submitted on law of principals, in prosecution for transporting liquor.
    Where defendant received can of alcohol from companion and started away with it, submitting case on theory and law of principals held not error, in prosecution for transporting intoxicating liquor.
    5. Intoxicating liquors <@=236(20) — Evidence in prosecution for transporting liquor held to' sustain verdict.
    In prosecution for transporting intoxicating liquor, evidence held sufficient to sustain verdict as to contents of can being beverage alcohol and as to fact of transportation.
    
      6. Crimina! law <§=>761 (10)—Charge assuming can contained beverage alcohol held not error, in view of evidence.
    Where, in prosecution for transporting intoxicating liquor, testimony showed contents of can were alcohol which could be used and drunk as beverage, assuming such fact in charge held not error.
    7. Criminal law <®=>800(l)—Failure to define “transport,” iii prosecution for transporting liquor, held not error where defendant carried alcohol 10 or 15 steps before arrest.
    In prosecution for transporting intoxicating liquor, where alcohol was carried by defendant 10 or 15 steps apparently in preparation for longer transportation, failure of court to'define “transport” held not error.
    8. Intoxicating liquors <§=>239(2)—Where defendant carried gallon can nearly full of alcohol, charge that possession of more than quart was prima facie evidence of guilt held not error.
    In prosecution for transporting intoxicating •liquor, where testimony showed can was gallon can nearly full, it was not error to submit to jury law making possession of more than quart of intoxicating liquor prima facie evidence of guilt.
    9. Criminal law <®=>8I4(I7)—Failure to submit law of circumstantial evidence held not error, in prosecution for transporting liquor based on direct testimony.
    In prosecution for transporting intoxicating liquor, failure to submit law of circumstantial evidence held not error, where testimony as to transportation was direct.
    Appeal from District Court, Howard' County; W. P. Leslie, Judge.
    D. L. Mendosa was convicted of transporting intoxicating liquor, and he appeals.
    Af-fiz-med.
    Harper & Howard, of El Paso, for appellant.
    Sam D. Stinson, State’s ,Atty„ of Austin, and Robt. M. Lyles, Asst, State’s Atty., of Groesbeck, for the State.
   LATTIMORE, J.

Conviction in district court of Howard county of transporting intoxicating liquor; punishment one year in the penitentiary

The record is before us without any sentence. The entry of a sentence is a prerequisite to an appeal. Hart v. State, 14 Tex. App. 323; Arcia v. State, 26 Tex. App. 193, 9 S. W. 685; Wooldridge v. State, 61 Tex. Cr. R. 324, 135 S. W. 124. In the absence of a sentence, this court is without jurisdiction to pass upon the questions raised on this appeal.

The appeal is dismissed.

On Motion to Reinstate Appeal.

At a former day the appeal in this ease ■was dismissed because of the absence of a sentence in the record. It is now made to appear that sentence was duly entered, and the record has been corrected.

Two officers were watching two Mexicans whose actions appeared suspicious. An incoming passenger train arrived. One of the Mexicans crawled hastily under the Pullman ear. At the same time the white clad legs of another man were observed by said officers on the other side of said Pullman, This man handed to the Mexican a packáge. The Mexican crawled back to where his companion was waiting. The white clad legs started around the end of the train. The Mexican who crawled under the train was Subia; his companion was the appellant. -Subia handed to appellant the package which was later found to be a gallon can of alcohol. A negro porter on the train clad in white clothes came around the end of the train about this time and joined appellant and Subia. They stood and talked a while and then started away, appellant having the can of alcohol. When they had gone 10 or 15 steps, the officers stopped them. > When the officers stopped the party, the porter said :

“Cap, I haven’t had anything to do with this, only just brought it to these boys; they have been after me so long, begging me to- bring this to them; I am not selling it.”

Upon examining the can and ascertaining ihat it was alcohol, the officers arrested the Mexicans and the negro porter and carried them to jail. The officers said the gallon can was practically full of alcohol, which, from taste and smell, they said was' alcohol that is drunk as a beverage. Appellant did not testify.

There are a number of bills of exception. Bills Nos. 1 and 2 show appellant’s . objections to the testimony of the officers that the container had in it alcohol, the objection being that they had not qualified as experts. Both bills are qualified, attention being called to the fact that both officers had sworn that the contents of the can in question was such alcohol that could-be drunk as a beverage, and that fact was known to the officei's by their having tasted and smelled the contents of the can. We do' not regard it necessary in such case that one be an expert.

Bills Nos. 3 and 4 complain of the admission in evidence of the statement made by the negro porter to the effect that he had brought it to these men.- In our opinion, the statement made was res geste of the transaction and admissible.

In our opinion, the testimony showed an acting together between Subia and appellant, and we perceive no error in the court submitting the case to the jury upon the theory and law of principals'.'

We are not in agreement with any contention of the appellant that the testimony did not show that the contents of the can, which appellant is alleged to have transported, ' was shown to beverage alcohol. The testimony of the officers showed that same was of that character.

The testimony having affirmatively shown that the liquor in said can was alcohol which could be used and drunk as a beverage, we see no error in the court assuming that fact in his charge, in so far as there was any such assumption. The record is entirely devoid of any testimony supporting any affirmative claim that the alcohol was- denatured or otherwise than grain alcohol.

The testimony being without conflict in the record that the alcohol was carried by appellant 10 or 15 steps from the place where it was handed to him, and that this was apparently the beginning of a longer transportation, we are not in accord with appellant’s claim that it was error for the court not to define the word “transport.” The alcohol was also brought from the place where it was obtained by Subia, to the point where appellant was waiting for him. We have no doubt of the sufficiency of the proof on the question of transportation.

There is some complaint of the charge of the court in submitting to the jury the law making possession of more than a quart of intoxicating liquor prima facie evidence of guilt. The complaint is not of form but of the fact of giving such charge. The testimony shows without dispute that the can was a gallon can and that it whs nearly full. Nor are we in agreement with the contention that the court erred in failing to submit the law of circumstantial evidence. The testimony regarding transportation was direct.

Finding no error in the record, the judgment will be affirmed. 
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