
    WINTERS v. STATE.
    (No. 8492.)
    (Court of Criminal Appeals of Texas.
    Oct. 8, 1924.
    Rehearing Denied Oct. 14, 1925.)
    1. Intoxicating liquors <&wkey;l38— One knowing whisky was in car guilty of transporting whether placed- therein before or after driving into garage.
    One backing his automobile out of garage, or allowing employee to do so for him, with knowledge that whisky was then in it and with intent to continue journey therewith, would be guilty of transporting intoxicating liquor whether he had whisky in car when he drove into garage or procured it and had sellers place it in car while in garage.
    On Motion for Rehearing.
    2. Intoxicating liquors <&wkey;238 (2) — Whether liquor was in defendant’s oar when driven into garage or placed there while in garage by others held for jury.
    Whether whisky found in defendant’s automobile while being backed out of garage was in it when driven into garage by defendant, or was placed in car while in garage by strangers from whom he purchased it, 'held for jury, who could accept or reject defendant’s testimony.
    @^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    
      3. Intoxicating liquors <&wkey;>236(20) — Conviction: of transporting held supported by evidence.
    Evidence held sufficient to support conviction of transporting intoxicating liquor.
    <J&wkey;For other oases see same topic and KEY-NUMBER, in all Key-Numhered Digests and Indexes
    Appeal from District Court, Stonewall County; W. R. Chapman, Judge.
    Bill Winters was convicted of transporting intoxicating liquor, and appeals.
    Affirmed.
    Stinson, Coombes & Brooks, of Abilene, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for the transportation of intoxicating liquor; punishment being one year in the penitentiary.

Appellant,' in an automobile, left his home at Guthrie to go to Merkel. His route would take him through Aspermont. At the latter place he drove into a garage to have a tube in a spare casing repaired. The sheriff testified that, as appellant was backing 'his car out of the garage, he was caused to stop it by the officer, who found under the back seat one full quart of whisky and another about two-thirds full. It was the theory of the state that the liquor was in the car when appellant drove it into the garage. Appellant denied this, his claim being that he met .two strangers in a toilet back of the garage, bought the whisky from them upon their promise to put it in his ear, and that ithe last he saw of them they were going towards the garage. Appellant admits that he intended to continue his journey with the whisky, but claims he did not back the car out of the garage, and that he had not gotten in the car when the sheriff apprehended him and discovered the liquor. Mr. Senter, the garage owner, testified that he thought one of the'employees backed-the car out, as it was the custom for them to do so to avoid accidents. If appellant had the whisky in the car when he drove into the garage he would be guilty of having unlawfully transported it. If he procured the whisky and had the sellers place it in the car while it was in the garage, and he backed the car out intending to continue his journey with the whisky in it, or if one of the men employed at the garage backed the car out for appellant in order that he might continue his journey, appellant knowing the whisky was then in the car, the transportation would have begun, and upon either horn of the dilemma appellant would be guilty. Lamb v. State, 95 Tex. Cr. R. 457, 255 S. W. 424; Lee v. State, 95 Tex. Cr. R. 654, 255 S. W. 425; Coburn v. State, 96 Tex. Cr. R. 25, 255 S. W. 613; Black v. State, 96 Tex. Cr. R. 56, 255 S. W. 731; Hannon v. State, 96 Tex. Cr. R. 660, 259 S. W. 1083. The court properly refused the requested instruction for a peremptory verdict of acquittal.

Complaint is made that the court over objection permitted the witness Senter to give it as his opinion that no one placed the liquor in appellant’s car while it was in the garage. In view of the explanation to the bill and the entire evidence of such witness, we think there is no merit in ithe contention.

Bills of exception 3 and 4 present no error when considered in the light of the court’s explanation of the matters therein brought forward for review.

The judgment is affirmed.

On Motion' for Rehearing.

'LATTIMORE, J.

In his original and able supplemental motions appellant urges that the facts do not make out, a case of guilt. His argument seems based almost entirely on the hypothesis that the jury must accept as true the testimony of appellant. There is no such rule. It is undisputed that he drove his car on the occasion in question into a garage which was about 50 feet wide- and left it standing aÉout 15 feet inside for approximately ten minutes while one of the employees fixed a- leak in the spare tube. The car was then backed out of the garage either by appellant or an emplqyee, and appellant was in the car and about to continue his journey on to a neighboring town when the sheriff came up, searched the car, and found a quart bottle of white whisky and a fruit jar about two-thirds full of red whisky under the back seat. Appellant swore that, while his tube was being repaired he went to a toilet, and there found two strangers,', who were drinking, and who gave him a. drink, and who told him -they would like to sell him some whisky, and' from whom he bought two quarts of said liquor for which he paid them $10. They agreed to put the-whisky in his car. He swore that he had at no time, seen the whisky and did not see it placed in ithe car, and that when he got in the car just before the sheriff arrested him and searched the car, he knew nothing more-about the presence of whisky there than as above stated.

These ubiquitous strangers who infest our country and inveigle our people into buying whisky, stolen horses, cattle, and other-property, and otherwise get our citizens in so much trouble, are a great menace to the peace and safety of the community. Invariably- they are like the Arabs who “fold their tents and as silently steal away.” They refuse to appear in court and back up the-stories of their victims. They are constantly imposing upon credulous people. In this-instance it seems that they induced appellant to buy, “sight unseen,” two quarts of whisky, and received from him $10 in money, paid upon his faith in their promise that they would find his car in broad .open daylight, in a public garage, and put two quarts of whisky under the seat. The visibility of said strangers is seriously brought in question by the testimony of Mr. S enter, the garage man, who says he was in his garage and around the car- in question during the entire time it was in there, and that no strangers came in during said time, and that no one placed any packages under the seat of appellant’s car; that had such things taken place he would of necessity have seen same. The trustworthiness of appellant’s plea was for the jury. The liquor was unquestionably found in his car. From the jury’s standpoint they were given two ways of accounting for its presence, one of which was that it was placed in the car by these apparently invisible and unknown “strangers”; the other was that it was in the car when it was driven into the garage by appellant. If this presented any dilemma to the jury they had a right to take either horn they saw fit, it being their province to accept or reject the testimony of the accused. They evidently did not believe his story. We have no criticism to make of the, jury for refusing to believe it. In our opinion their conclusion of guilt was supported by the testimony.

Nothing in West v. State, 93 Tex. Cr. R. 370, 248 S. W. 371, antagonizes our holding. The accused in that case was seen loitering near where a suitcase full of liquor was found. Another party was with him. From the entire record it did not appear to us that the testimony supported the belief that the accused transported the liquor in question.

The motion for rehearing will be overruled.  