
    HUGHES v. STATE.
    (No. 7413.)
    (Court of Criminal Appeals of Texas.
    Feb. 7, 1923.
    Rehearing Denied Nov. 12, 1924.
    Rehearing Granted Feb. 11, 1925.)
    1. Intoxicating liquors <§=>13, 132 — State statute, denouncing unlawful transportation of intoxicating liquor, held not in conflict with United States Constitution and act of Congress thereunder.
    State statute, prohibiting the transportation of intoxicating liquor, held not unconstitutional because in conflict with United States Constitution and act of Congress thereunder.
    2. Criminal law <§=>394 — Evidence, procured in search without warrant of defendant’s automobile when defendant was under arrest, held admissible.
    In liquor prosecution, testimony that whis-ky was found in searching defendant’s automobile without search warrant while defendant was under arrest, held admissible.
    3. Criminal law <§=>1097(5) — Questions as to court’s charge not considered in absence of statement of facts in record.
    Bills of exception, relating to court’s charge and refusal of requested special charges, will not be considered in absence of statement of facts in the record.
    On Second Motion for Rehearing.
    4. Criminal law <§=>761 (6) — Instruction held to assume fact in issue.
    In liquor prosecution involving issue as to whether the liquor found in defendant’s possession was whisky, instruction submitting question of whether “the whisky found by the oflicer in defendant’s car” was being transported, held improper, in that it assumed that the liquor was whisky.
    5. Criminal law <§=>459, 493 — <Opinion of oflicer that liquor had whisky odor held competent but not conclusive as to character of liquor.
    Testimony of oflicer, who stated that he was acquainted with the odor of whisky; that the liquor found in defendant’s possession had such an odor; and that in his judgment the liquor was whisky, held competent but not conclusive.
    6. Intoxicating liquors <§=>238(3) — Whether liquor found in defendant’s possession was whisky held for jury.
    In prosecution for transportation of liquor, question as to whether liquor found in defendant’s possession was whisky held for jury.
    Appeal from District Court, Morris County; R. T. Wilkinson, Judge.
    I. Alf Hughes was convicted of the unlawful transportation of intoxicating liquor, and he appeals.
    Reversed and remanded.
    Henderson & Bolin, of Daingerfield, and Dial, Melson, Davidson, & Brim, of Sulphur Springs, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction is for unlawful transportation of intoxicating liquor, with punishment assessed at one year’s confinement in the penitentiary.

Motion to quash the indictment was presented upon the ground that the law under which the prosecution proceeded was unconstitutional and unenforceable as being in conflict with the Constitution of the United States and the act of Congress thereunder. Since the decision in Ex parte Gilmore, 88 Tex. Cr. R. 529, 228 S. W. 199, this' question has been so frequently decided adversely to the contention that we deem it unnecessary to cite the cases, save the two cases of Clyde Chandler v. State, 89 Tex. Cr. R. 308, 232 S. W. 336, and 89 Tex. Cr. R. 599, 232 S. W. 337, and the two cases of John Chandler v. State, 89 Tex. Cr. R. 306, 232 S. W. 317, and 89 Tex. Cr. R. 308, 232 S. W. 336. The same contentions here urged were relied on in the four cases last cited. Not being satisfied with .the holding of this court, writs of error to the United States Supreme Court were applied for and granted. That court on January 3, 1923, dismissed said eases (260 U. S. 708, 43 S. Ct. 247, 67 L. Ed. 474), declining to consider the questions raised.

The first bill of exception complains that a state witness was permitted to testify that upon searching appellant’s automobile while appellant was under arrest whisky was found, but that such officer had no search warrant. Under authority of Welchek v. State (No. 7136) 93 Tex. Cr. E. 271, 247 S. W. 524, the objection was not tenable.

All other questions presented by bills of exception relate to the charge of the court and to the refusal to give certain special charges. No statement of facts is in the record, and obviously, in its absence, we cannot intelligently pass upon questions raised relative to the charge given, nor to those refused.

Einding no error in the record, the judgment is affirmed.

On Motion for Rehearing.

MORROW, P. J.

The statement of facts now being before us, same will be considered with the reeord'in disposing of the case.

According to the state’s testimony, appellant had in his possession a pint bottle containing corn whisky. He went to the toilet and placed the bottle in the bosom of his shirt. Upon coming out, he got into his automobile and rode some little distance about the town with the whisky in his shirt bosom.

Evidence showing the liquid to be whisky was given by the testimony of the officer that the liquid, after the bottle was broken, smelt like whisky. Other witnesses testified to the contrary. We think the evidence is sufficient to show that the appellant was in possession of a bottle containing a pint or less of whis-ky. There was no evidence, however, that his possession was unlawful or that he possessed it with any unlawful intent. Under the statute, he was permitted to possess that quantity of intoxicating liquor, and under a recent amendment to the statute, no inference of unlawful intent is drawn for the possession. It is believed by the writer that the facts do not bring the case within the purview of the statute forbidding one to transport intoxicating liquor. However, my associates are of the contrary opinion. This matter was discussed in the original, concurring and dissenting opinions in the case of Gandy v. State (No. 7579) 268 S. W. 951, to which reference is made.

The motion for rehearing is overruled.

On Second Motion for Rehearing.

MORROW, P. J.

The motion presented is denominated an application to file a second motion for rehearing. Technically it is such, but substantially it is not. The case on the original hearing was not decided on its merits because the clerk of the trial court had failed, without fault on the part of the appellant, to send up to this court the statement of facts. When the statement of facts was fired, the case was passed on. The particular question discussed in this opinion was not pertinently brought to the attention of the court.

Attention is drawn to paragraph 3 of the charge of the court from which we copy:

“You’are instructed that by the word, ‘transport,’ as used in this charge, is meant to carry from one place to another. Now, if you believe beyond a reasonable doubt that the whisky found by the officer in the defendant’s ear was brought to that place from some other place by the defendant, then such, in law, would be transporting intoxicating liquor.”

This paragraph was assailed in the trial court as being upon the weight of the evidence in that it assumes that the appellant had whisky in his car. It appears from the state’s testimony that there was a bottle in the car of the appellant under circumstances indicating that it had been carried; that, while an officer was searching the ear without a warrant, the appellant broke the bottle. The officer stated that the bottle had corn whisky in it. According to his testimony, the bottle was a patent medicine bottle. The contents was not tasted by the officer, but he smelled it and it had the odor of whisky; that is, there was. a remnant of about a spoonful in a part of the bottle after it was broken. The officer put his finger in this remnant and smelled it. He said, “That is the only way I have of judging it to be whisky.”

Before the bottle was broken, it was a 16-ounce bottle about two-thirds full. The other witnesses testified, in substance, to the same effect as did the officer, both of them relying upon the odor in determining that the substance in the bottle was whisky. A witness for the appellant who saw the episode went at once to the place where the bottle was broken, but did not smell. any thing. He was a couple of feet, he said, from the piece that was picked up by the officer, but he did not try to smell it. He did not detect any order.

The opinion of the witnesses, based upon the odor of the liquid, was, we think, competent evidence. In other words, the statement of the officer that he was acquainted with the odor of whisky; that the liquid in question had such an odor; that in his judgment it was whisky, was proper testimony to go before the jury. It was not conclusive, however, that the liquid was whisky, nor that it was intoxicating liquor. It is conceived that the article might have the odor of whisky and yet contain an amount of alcohol so small that it would not be classified as intoxicating liquor. Witnesses for the appellant raised' an issue as to whether the substance had the odor of whisky. See Cath-ey v. State, 94 Tex. Cr. R. 599, 252 S. W. 534; Estell v. State, 91 Tex. Cr. R. 481, 240 S. W. 913.

Under the facts of the present case, we are constrained to believe that the evidence was such as made it incumbent upon the court to so frame his charge that the jury would he called upon to determine whether the liquid possessed by the appellant was whisky and that, inasmuch as the charge given assumes that the liquid was whisky, it was amenable to the objection made, namely, that it was upon the weight of the evidence, and should have been amended. See Webb v. State, 8 Tex. App. 115; Jones v. State, 70 Tex. Cr. R. 343, 156 S. W. 1191; Vernon’s Tex Crim. Stat. vol. 2, p. 466, note 89.

The motion for rehearing is granted, the affirmance heretofore rendered is set aside, the judgment is reversed, and the cause remanded. 
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