
    BURNS v. STATE.
    (No. 8780.)
    (Court of Criminal Appeals of Texas.
    Jan. 21, 1925.
    Rehearing Denied Feb. 25, 1925.)
    1. Intoxicating liquors <§=>138 — Not essential . to conviction for transportation that liquor be carried by method other than having it on one’s person.
    It is not essential to a conviction for transportation that the liquor be carried from one place to another by some means or method other than having it on one’s person.
    2. Criminal law <§=>394— Failure to comply with act relating to property seized without search'warrant held not ground for excluding evidence of arrest and description and disposition of liquor found on accused’s person.
    Failure of state to comply with Acts 38th Leg. c. 117, relative to requirement to make written report of seizure of whisky without warrant, stating in detail names of officers seizing, place of seizure, and an inventory of the liquor so seized, held not ground for excluding testimony of accused’s arrest and the description and disposition of the liquor found on his person.
    3. Criminal law <§=>814(17) — Evidence of transportation of liquor held not to justify instruction on circumstantial evidence.
    Evidence adduced in support of charge of transporting intoxicating liquor held not to justify instruction on circumstantial evidence.
    4. Criminal law <§=>829(1) — Refusal to> give special charge covered hy main charge held not error.
    Refusal to give special charge covered by main charge held not error.
    5. Intoxicating liquors <§=>138 — Act of carrying liquor on one’s person for 1¼. miles held transportation.
    Act of carrying intoxicating liquor on one’s person for distance of 1½ miles held to constitute offense of transporting intoxicating liquor.
    Appeal from District Oourt, Shelby County; Chas. L. Brachfield, Judge.
    W. A. Burns was convicted of transporting intoxicating liquor, and he appeals.
    Affirmed.
    D. M. Short & Sons, of Center, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

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

Four witnesses testified, all for the state. Giles said that on the 22d of April, 1923, he found appellant on the Santa Fé Railroad, going from Timpson toward Grigsby, a mile and a quarter from the Knight Hotel and from the post office in the town of Timpson, and found on him when arrested three bottles of corn whisky. Witness said that he took the liquor home, and brought it to court, and delivered it to Mr. McLeroy’s office. Virgie Larson said she saw appellant at the Knight Hotel on the‘22d of April, and that he-had, three bottles of shinney or whis-ky; that he left this hotel and went to the railroad track, and started down the railroad toward Garrison, having one of the bottles of liquor in his hip pocket, another in his jacket, and at first had the other in his hand, but put it in his pocket. She informed Mr. Giles of. what she had seen. Witness Garrett saw appellant on said ’ day at the post office, and heard John Todd tell him, “Gus, you are drunk, and the officers will get you,” and heard appellant say, “No; me and the officers stand in; they wouldn’t bother me;” and witness remarked to appellant, “They will get you before you get away.” Witness heard of appellant being arrested about 30 minutes later.

Mr. McLeroy testified that he was county attorney about the date of the above occurrence, and that, while he had no distinct' recollection of Mr. Giles bringing any whis-ky to his office, he saw it there later, and that it was in his safe. He moved his office from Timpson to Center, and the whisky disappeared, and witness did not know what had become of it. Witness testified that he knew where appellant lived at the time of his arrest above mentioned, and that the nearest way from the post ’ office to where appellant lived would be down the railroad by the place where Officer Giles arrested appellant. These are the facts.

Appellant has a number of bills of exception and a brief presenting and arguing each of them. Without specifically identifying by number the bills of exception evidencing the complaints, we shall discuss all of them. We are unable to agree with the proposition that, in order to constitute transportation of intoxicating liquor, it must be carried from one place to another by some means or method other than having it on one’s own person. The unsoundness of this must be apparent; else any quantity of liquor might be carried by individuals, and -the law thus be practically nullified.

Three bills of exception present objections to oral testimony regarding the arrest of appellant in possession of three bottles of whisky, and the description and disposition made of said liquor; the objection being that no written report of the seizure of said whisky had been made, stating in detail the name of the officer making the seizure, the place where seized, and an inventory of such liquor as is provided by an act of the Thirty-Eighth Legislature (Acts 38th Leg. c. 117). This proposition is discussed, and a view expressed contrary to that entertained by appellant in Austin v. State, 97 Tex. Cr. R. 360, 261 S. W. 1035.

Complaint is made of the refusal of a requested charge presenting the law applicable to circumstantial evidence. We are unable to agree with appellant, and do not think the case one of circumstantial evidence. Witness Giles saw appellant going down the railroad track, and found on him three bottles of intoxicating liquor. Witness Larson saw him have three bottles of such liquor at the Knight Hotel, and saw him leave there, and go to the railroad, aid start down the railroad track, apparently in the direction of his home. This established transportation by direct evidence, and obviated the need for a charge on the law of circumstantial evidence.

If we be correct in holding that liquor may be transported, within the terms of this statute, on or about the person of the appellant, another special charge relating to said matter was properly refused. The presentation of the exceptions made by the liquor statute, as appears in another special charge, which was refused, was fully covered by the main charge of the court, which told the . jury that they must believe beyond a reasonable doubt that the liquor was not transported for medicinal, mechanical, scientific, or sacramental purposes.

We do not think the Benson Case, 95. Tex. Cr. R. 313, 254 S. W. 793, or the West Case, 93 Tex. Cr. R. 370, 248 S. W. 371, which are cited in appellant’s brief, hold contrary to the views expressed in this opinion. The distance from the post office, where appellant was seen under the influence of liquor and having in his possession the bottles mentioned, to the point where appellant was apprehended, was a mile and a quarter. The liquor was intoxicating. The transportation within the terms of the law was fully proven.

Finding no error in the record, an affirmance will be ordered. 
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