
    PHILLIPS v. STATE.
    (No. 11565.)
    Court of Criminal Appeals of Texas.
    May 2, 1928.
    Criminal law <⅝=200(4) — Acquittal in prosecu-, tion for possessing liquor for sale held to bar subsequent prosecution in adjoining county for transporting liquor, involving same transaction.
    Previous indictment and acquittal of defendant for offense of possessing intoxicating liquor for the purpose of sale held to bar subsequent prosecution in adjoining county for transporting intoxicating liquor, if the same transaction, which occurred near the boundary line of the two counties, was involved in both prosecutions and the whisky alleged to have been transported was that previously claimed to have been in defendant’s possession for sale.
    Commissioners’ Decision.
    Appeal from District Court, Yan Zandt County; Joel R. Bond, Judge.
    Will Phillips was convicted of transporting intoxicating liquor, and he appeals.
    Reversed and remanded.
    Justice & Sigler and H. A. Justice, all of Athens, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is transporting intoxicating liquor; the punishment confinement in the penitentiary for one year.

The transaction out of which the prosecution grew occurred near the line between Henderson and Yan Zandt counties. Appellant was tried in Henderson county on the 13th of September, 1927, for the offense of possessing intoxicating liquor for the purpose of sale. The present trial was had in Van Zandt county on the 5th day of October, 1927. Appellant filed what he denominated a “plea in bar” wherein it was averred, in substance, that he had theretofore been indicted and acquitted .in Henderson county of the offense of possessing intoxicating liquor for the purpose of sale; that the transaction upon which such acquittal was had was the same transaction for which the state was then seeking to place him on trial; that the state would rely upon the same evidence, use the same witnesses, and develop the same transaction, and no other. The proof heard during the trial of the instant case raised the issue that the whisky for which appellant was under indictment for transporting was the same whisky involved in the prosecution in Henderson county; that the same witnesses who testified on the instant trial testified in Henderson county to the purchase of said whisky; and that the transaction was the same. It was not shown in the trial of the instant ease that appellant was in the possession of any liquor in Henderson county other than that claimed in the present' case to have been transported. The court refused to permit the jury to consider the plea. The court’s action in the premises is assigned as error and properly presented by bill of exception. We must sustain appellant’s contention. If the state relied upon the same criminal act in both cases, jeopardy had attached. Coon v. State, 97 Tex. Cr. R. 645, 263 S. W. 914. The issue should have been submitted to the jury under appropriate instructions.

The judgment is reversed and the cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.  