
    MURPHEY v. STATE.
    (No. 11572.)
    Court of Criminal Appeals of Texas.
    May 2, 1928.
    1. Indictment and information &wkey;>79 — Misspelling of word “intoxication” by omission of letter “x” held not to ‘vitiate indictment for .transporting liquor.
    Misspelling of word “intoxication” by omission of letter “x,” thus forming the word “in-toication,” in indictment for unlawfully transporting intoxicating liquors, held not to vitiate indictment or require reversal of conviction.
    2. Intoxicating liquors <&wkey;236(20)— Evidence that defendant ran from officers with jar from which whisky was pouring and then threw jar away held insufficient to sustain conviction for transporting liquor.
    Evidence of defendant’s running away 25 steps from officers with jar from which he was pouring out whisky, after which he dropped or threw jar to the ground, held insufficient to sustain conviction for transporting liquor, since evidence of transportation was circumstantial and was not inconsistent with innocence, under de.-fense that defendant was merely invited to take a drink.
    Appeal from District Court, Crosby County ; Homer L. Pharr, Judge.
    Dee Murphey was convicted for unlawfully transporting intoxicating liquor, and he appeals.
    Reversed and remanded.
    E. A. Watson, of Crosbyton, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for tbe State.
   MORROW, P. J.

Tbe offense is tbe unlawful transportation of intoxicating liquors'; punishment fixed at confinement in tbe penitentiary for one year.

Tbe fact that in writing tbe indictment tbe word “intoxication” was misspelled by tbe omission of tbe letter “x,” thereby forming tbe word “intoication,” would not require a reversal of tbe judgment. It has often been held that bad spelling will not vitiate an indictment if tbe sense is not affected and tbe meaning cannot be mistaken. See Branch’s Ann. Tex. P. C. § 490, and cases collated, including. Brumley v. State, 11 Tex. App. 114.

Upon tbe farm of a man named Lemly, in which the appellant was not shown to have bad any interest, and which farm was situated about five miles from Crosbyton, an officer discovered under a shock of maize several half-gallon jars of whisky. This occurred in tbe afternoon. Tbe officer notified other officers, and after dark they went together to tbe place and concealed themselves. The appellant and one Thedford stopped their car upon tbe road and came to tbe shock at which the whisky was deposited. Thedford was not prosecuted, but testified in behalf of tbe appellant that the whisky belonged to one “Slim”; that he (Thedford) knew of its whereabouts and invited the appellant to go to the shock and drink some whisky. Another witness testified that he heard the conversation between Thedford and the appellant. Thed-ford testified that upon reaching tlie shock he opened a jar' of whisky and took a drink therefrom; that he passed it to the appellant, who was in the act of drinking it when the officers disclosed themselves. Upon observing the officers, both Thedford and the appellant started to run away. The appellant, having 'a jar of whisky in his hand, emptied it as he ran, and after he .got a short distance from the shock he dropped or threw the jar upon the ground. The testimony of the officers is to the effect that, before the appellant was overtaken he had moved 25 or 30 steps from the shock under which the whisky had been deposited. It is apparent- from their testimony that as the appellant moved away the whisky was pouring from the jar. It was open, and the top of the jar was found upon the ground a few feet from the shock of maize.

The evidence that the appellant was transporting whisky seems circumstantial, and the circumstances appear quite as consistent with his theory, as developed hy his testimony and that of his witnesses, as with the theory of the state. The jar of whisky was open and therefore not in a condition to transport. He was startled by the appearance of the officers, and while pouring out the whisky he moved a few steps from the shock. We are of the opinion that the evidence does not meet the measure of circumstantial evidence which the law requires. It is not inconsistent with any hypothesis save his guilt. It is consistent with his innocence of the offense of which he was convicted. The sufficiency of the evidence to overcome the presumption of innocence and establish his guilt beyond a reasonable doubt is in such doubt that this court does not feel warranted in affirming the judgment.

The judgment is reversed and the cause remanded. 
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