
    REID v. STATE.
    (No. 8854.)
    (Court of Criminal Appeals of Texas.
    April 29, 1925.)
    1. Criminal law <&wkey;86l — 'Permitting jury to smell liquor improper, but harmless.
    It was improper to permit jurors to smell liquor in evidence, but not harmful though useless, where information thereby obtained was of no value in determining controverted question; there being no dispute about character of liquor.
    2. Intoxicating liquors &wkey;235 — Exclusion of evidence tending to support defendant’s testimony that he was merely guest in automobile transporting liquor held error.
    In prosecution for transporting intoxicating liquor, in which defense was that defendant was merely a guest of owner of autombbile, exclusion of testimony that owner had requested defendant and another to go with him to help push automobile out of bad places was error, as it tended to illustrate intent of defendant and 'to support his testimony, and also tended against state’s theory that defendant was principal.
    3. Witnesses <í&wkey;34Íf(2) — Asking witness whether she had not paid fine for being common prostitute not error.
    It was not error to ask witness whether she had not paid a fine for being a common prostitute.
    4. Intoxicating liquors &wkey;239(2) — Instruction that accused' had burden of showing transportation was for excepted -purposes held error as uncalled for by evidence. '
    Instruction that party transporting liquor had burden of showing that it was for either medicinal, mechanical, scientific, or sacramental purposes, held error, where there was no evidence that whisky was transported for either of purposes named.
    5. Intoxicating liquors <&wkey;239(I) — Instruction that automobile occupant, having no possession or control over liquor being transported, not guilty of unlawful transportation, held called for.
    Instruction that mere presence in another’s automobile in which whisky was found would not make defendant guilty, but if whisky was owned by such other and under Ms control, and defendant had no interest or 'control over it, he would not be guilty unless he agreed to transport liquor, or by his acts or words aided or encouraged its transportation, held called for.
    6. Criminal law <&wkey;8l4( 17) — Charge on circumstantial evidence held properly refused.
    Where defendant and others Were apprehended while riding in an automobile on a.public highway, in which automobile whisky was found, a charge on circumstantial evidence was properly refused.
    other cases see same topic and KEY-N UMBER in all Key-Numbered Digests and Indexes
    
      Appeal ¿rom District Court, Nacogdoches County; D. D. Guinn, Judge. '
    Sonny Reid was convicted of transporting intoxicating liquor, and lie appeals.
    Reversed and remanded.
    Adams & Moore, of Nacogdoches, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

Transporting intoxicating liquor is the offense; punishment fixed at confinement in the penitentiary for one year.

According to the state’s testimony, Leonard Barrett, Dewey Hollis, and the appellant were apprehended while riding in an automobile upon a public highway in which automobile there were found several gallons of whisky. It was contained in one-gallon jugs and was setting in the car between the front and rear seats. Barrett was driving the car. Appellant and Hollis were riding in the rear seat.

According to the appellant, while he was at home, Barrett came and said that he was thinking of making a trip out on the road and would like to have some company. He invited the appellant to go with him. Dewey Hollis joined the party upon the invitation of the appellant. The car was driven out in the country some distance from the city. After reaching a certain point, it was stopped and a number of gallon jugs were put into the car. Appellant said he believed that the jugs contained whisky, though he did not know their contents, and was without previous knowledge or information that Barrett intended to put liquor in the ear. He testified that he did not want to walk back in the night, and concluded to ride in Barrett’s ear and take chances of encountering officers.

[1] It was improper for the court to permit the district attorney to pass around to the members of the jury a part of the liquor that was involved and have them- smell it. This procedure has often been criticized, and the reason for its continued repetition is difficult to comprehend. If the information gotten by this experiment could be appropriated by them to any controverted question, the" conviction would be jeopardized. If, as in the present case, it could not be appropriated, it would seem a useless act. There seems no question that there were several jugs of whisky in the car in which the appellant was riding. The fact that the jury were called upon to smell the whisky, while useless and improper as stated above, cannot under the circumstances be regarded as harmful. See Lerma v. State, 81 Tex. Cr. R. 109, 194 S. W. 167; Cook v. State, 96 Tex. Cr. R. 586, 258 S. W. 1058.

The exclusion of the proffered testimony of Matilda Reid, to the effect that Leonard Barrett had requested the appellant and Dewey Hollis to go with him, stating that he needed some one to help push the car out of the bad places and would not be gone for more than an hour, was,’ we think, improper. It tended to illustrate the intent of the appellant and to support his testimony to the. effect that he accompanied Barrett without knowledge that he was going on an unlawful mission. It also tended against the state’s theory that the appellant was a principal.

The complaint that the witness Annie Sanders was asked if she did not pay a fine for being a common prostitute was properly overruled. Steele v. State, 94 Tex. Cr. R. 345, 251 S. W. 222; Chase v. State, 97 Tex. Cr. R. 349, 261 S. W. 575.

In one of the paragraphs of the court’s charge are found these words:

“You are charged that should the state show that a party transported intoxicating liquor, the burden is upon such party so transporting to show that such intoxicating liquor was transported for either medicinal, mechanical, scientific, or sacramental purposes.”

The applicability of this part of the charge is not perceived. No evidence suggesting that the whisky was transported for either of the purposes named in the charge was before the court. The charge was, in our opinion, not only uncalled for by the evidence, but was calculated to divert the minds of the jury from the real issue in the case and lead them to infer that a conviction was proper if there was no evidence introduced showing that the liquor was transported for one of the permitted purposes. See Jones v. State, 96 Tex. Cr. R. 332, 257 S. W. 896; Deshazo v. State, 97 Tex. Cr. R. 490, 262 S. W. 764; Johnson v. State (Tex. Cr. App.) 266 S. W. 155.

In connection with the law of principals, the converse should have been given, namely, that the mere presence of the appellant would not make him guilty, but that if the whisky was owned by Barrett and was under his control, and that if appellant owned no interest in it, exercised no control over it, and had no physical possession of it, he would not be guilty, unless he had agreed to transport the whisky, or by his acts or words aided or encouraged its transportation. Newton v. State (Tex. Cr. App.) 267 S. W. 272; Richardson v. State, 89 Tex. Cr. R. 17, 228 S. W. 1094; Branch’s Ann. Tex. P. C. § 680.

The court properly refused to charge on circumstantial evidence.

For the errors pointed out, the judgment is reversed and the cause remanded.  