
    D. E. Morgan v. The State.
    No. 8644.
    Delivered March 11, 1925.
    Rehearing denied April 15, 1925.
    1. —Transporting Intoxicating Liquor — Special Charge — Properly Refused.
    Where the evidence showed that appellant was transporting two other quarts of whisky, in addition to a quart that he claimed he was transporting for medicial purposes, a special charge that if the jury should find that if he was transporting same for medicinal purposes for his wife to find him not guilty was properly refused.
    
      ON EEHEABIWO.
    2. —Same—Pacts Held Sufficient.
    Where appellant’s contention is that he transported two quarts of whisky for a friend, as an accommodation, and not for profit, such contention, if true would he no defense to a prosecution for unlawfully transporting intoxicating liquor.
    3. —Sams—Special Charges — Refusal of — Exceptions to.
    W’here the refusal to give a special charge is not excepted to at the time, this court will not consider such refusal.
    Appeal from the District Court of Limestone County. Tried below before the Hon. J. R. Bell, Judge.
    Appeal from a conviction of transporting intoxicating liquor; penalty, one year in the penitentiary.
    The opinion states the ease.
    D. F. Watkins, of Mexia, for appellant.
    
      Tom Garrard, State’s Attorney, and Grover C. Morris, Assistant State’s Attorney, for the State.
   LATTIMORE, Judge.

Appellant was convicted in the district court ct' Limestone Cotinly of transporting intoxicating liquor, and his punishment fixed at one year in the penitentiary.

Appellant was a service car driver, running in and out of Mexia, Texas, and on the occasion in question drove his ear at night several miles in the country to a negro supper or festival. Officers of the county conducted a raid that night and arrested appellant and his companions as they approached said place. Appellant was driving the ear in the front seat with him was a negro woman and a half gallon of whiskey. In the back seat of the car was another white man with a negro woman sitting by him and they also had another half gallon of whiskey. It is undisputed that as the party left the town on their way to the festival, appellant got out of the car at a certain point and procured the whiskey which he brough back and placed in the car. On the trial he insisted that he bought it with money contributed largely by the other .white man in the car, and that he owned only a quart of the whiskey and that the remainder belonged to the other man. He- also took the position that the quart purchased by him was purchased and was being transported for medicinal purposes, this is, for the use of his wife. This theory was submitted to the jury in appropriate language in the charge of the court.

Appellant complains of the refusal of his special charge No. 2, in substance, asking that the jury be told that he would not be guilty of the offense of transporting intoxicating liquor if same was obtained for medicinal purposes, even though he took a drink of some before arriving at his destination, and that if the jury believed beyond a reasonable doubt that he purchased the intoxicating* liquor but that he did purchase the same for the purpose of taking it home for his wife for medicinal purposes, he should be acquitted. The learned trial judge appends a qualification to the bill of exceptions complaining of the refusal of this charge, in which he states that it was not claimed by the accused that all the liquor transported by him was for medicinal purposes, but that the evidence showed that other whiskey besides that which he claimed he had for such purpose, was being transported in his car with his knowledge.

The evidence overwhelmingly seems to show, irrespective of the quart claimed by appellant to have been purchased and transported by him for medicinal purposes, that he bought with the money of his friend three quarts which he was transporting and which he did not claim to be transporting for medicinal purposes, and it is difficult for us to see how any claim of error in regard to the charge •can be soundly made.

The judgment of the trial court will be affirmed.

Affirmed.

ON MOTION FOR REHEARING.

LATTIMORE, Judge.

Appellant insists that even though he did transport three quarts of whiskey bought by him for a friend who was in the car with him, such transportation was for accommodation and not profit, and therefore he was not punishable for such transportation, and' he cites Green v. State, 259 S. W. Rep. 582, and Mayo v. State, 245 S. W. Rep. 241. In Green’s case it was contended on the trial that all the whiskey was transported for medicinal purposes, and the case was reversed because a charge appropriate to this theory was not given. In Mayo’s ease he offered to show by others that he suffered from an illness for which whiskey gave relief, and that he had been using same for such illness on the advice of a physician. This evidence was offered to corroborate his own testimony that he was taking the whiskey to his home on the occasion in question solely for use as a medicine. This court held it error to reject such proof.

Inasmuch as there was no contention made in the instant ease that the liquor bought and transported by appellant for his friend was for medicinal purposes, we fail to see the application of the authorities cited.

The refusal to give special charge No. 2 was in no way excepted to, which fact would be a necessary predicate for its consideration by us. Nor do we think paragraph 5 of the court’s main charge open to appellant’s exception taken thereto.

Regretting our inability to agree with the contentions of appel-. lant, the motion for rehearing will be overruled.

Overruled.  