
    CECIL v. STATE.
    (No. 7043.)
    (Court of Criminal Appeals of Texas.
    June 14, 1922.
    Rehearing Denied Oct. 11, 1922.)
    1. Criminal law <©=>l122.(6) — Refusal of charge not considered without showing that it was presented after conclusion of evidence and before argument.
    Refusal of requested charge will not be considered on appeal in the absence of a showing in the record that the requested charge was presented to the court after the evidence was concluded and before the argument.
    2. Intoxicating liquors <©=^131 — Transportation an offense though not for purpose of sale.
    The transportation of intoxicating liquor, to constitute an offense, need not have been for the purpose of sale.
    3. Intoxicating liquors <©=^233(2) — Testimony that witness saw officers find liquor in suit case held admissible.
    In prosecution for transportation of intoxicating liquor, testimony that witness saw. officers investigate contents of and find a quantity of liquor in a suit case bearing defendant’s initials, and containing, in addition to the liquor, a vest of the same kind of cloth as defendant’s coat and trousers, held admissible.
    On Motion for Rehearing.
    4. Intoxicating liquors <©='202-Mlndlcfment charging transportation of liquor need not allege transportation to have been for purpose of sale.
    In prosecution for transportation of intoxicating liquor, it was not necessary for the indictment to allege that the transportation of the liquor was for the “purpose of sale.”
    • Appeal from District Court, Titus County; R. T. Wilkinson, Judge.
    Joe R. Cecil was convicted of transporting intoxicating liquor, and he . appeals.
    Affirmed.
    Seb P. Caldwell, of Mt. Pleasant, for appellant.
    R. G. Storey, Asst. Atty Gen., for the State.
   LATTIMORE, J.

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

Appellant complains because the court refused certain requested charges in which he sought to have the jury instructed that, unlesq the transportation of the liquor in question was for the purpose of sale, appellant would not be guilty of ' any offense. There appear in the record no bills of exception reserved to the refusal of such special charges. There is no statement upon either of said charges as written or in the approval by the trial court which in any way reflects the fact that such charges were presented to the court after the evidence was concluded, and before the argument. Being unable to ascertain this necessary fact from thé record, we are compelled to decline to consider the question of the refusal of said special charges. Barrios v. State, 83 Tex. Cr. R. 548, 204 S. W. 326; Gibson v. State, 88 Tex. Cr. R. 281, 225 S. W. 538; Gibbs v. State, 88 Tex. Cr. R. 487, 227 S. W. 1107. However, if the matter was before the court properly, and in a manner to call for our consideration, we would hold the refusal of said special charges on the part of the court below correct Ex parte Doc Mitchum (Tex. Cr. App.) 237 S. W. 936; Stringer v. State (Tex. Cr. App.; No. 6954) 241 S. W. 159, opinion delivered May 24, 1922.

Appellant has several bills of exception complaining of the testimony of witnesses relative to a suit case in which the officers found quantities of corn whisky. Mrs. Moore testified that appellant brought said suit case into a restaurant and set it down, and that she saw the officers when they came and investigated the contents of said suit case. Appellant’s name was J. R. Cecil. Upon said suit case were the initials J. R. C. In said suit case, in addition to the intoxicating liquor mentioned, was a vest of the same kind of cloth of which were appellant’s coat and trousers. We are unable to agree with appellant that said evidence was inadmissible, or that appellant was not properly connected therewith.

Having examined the record, and finding no error committed upon the trial, and believing same sufficiently establishes the guilt of the appellant, an affirmance is ordered.

On Motion for Rehearing.

HAWKINS, J.

Appellant complains because our original opinion did not discuss his assignment of error based upon the failure of the trial court to quash the- indictment because it omitted to charge that the transportation of the liquor was for the “purpose of sale.” The disposition of the question raised by the refusal of special charges upon the same issue in effect disposed of the matter adversely to. appellant’s contention. However, the point has been passed upon directly in Ex parte Mitchum (Tex. Cr. App.) 237 S. W. 936; Stringer v. State (Tex. Cr. App.) 241 S. W. 159; Crowley v. State (Tex. Cr. App.) 242 S. W. 472. We regard the matter as analogous to our statute which denounces the carrying of arms “on or about the person.” Whenever an indictment so alleges an offense is charged, but, if accused can show that he comes within one of the exceptions, his defense is complete. We do not agree to the proposition contended for, that the indictment must allege that the transportation was for the purpose of sale. Our reasons appear in the opinions found in the cases cited supra. See, also, Copeland v. State (No. 6994) 244 S. W. 818, this day decided.

The motion for rehearing is overruled. 
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