
    PARROTT v. STATE.
    (No. 8663.)
    (Court of Criminal Appeals of Texas.
    March 25, 1925.
    Rehearing Denied May 6, 1925.)
    1. Criminal law &wkey;>74l(!) — Jury are exclusive judges of weight of testimony, and facts proven.
    Jury are exclusive judges of weight of testimony, and facts proven.
    2. Intoxicating liquors <&wkey;202 — Indictment, in prosecution for transporting intoxicating liquor, held sufficient. ,
    Indictment, in prosecution for transporting intoxicating liquor, helé sufficient, under Acts 1st Called Sess. 37th Leg. (1921), c. 61 (Vernon’s Ann. Pen. Code Supp. 1922, art. 588(4 et seq.), though not alleging that liquor was transported for purposes of sale.
    Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
    R. W. Parrott was convicted of transporting intoxicating liquors, and he appeals.
    Affirmed.
    John B. McNamara and John W. Spivey, both of Waco, 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 McLennan county of transporting intoxicating liquor and his punishment fixed at two years in the penitentiary.

The record discloses a case of conflicting facts; those for the state" showing beyond any question the guilt of appellant, those for appellant combating said proposition. The jury are the exclusive judges of' the weight of the testimony and of the facts proven, and, having solved these issues adversely to appellant, we do not feel called on, to disturb their verdict.

Able' counsel for appellant moved to quash the indictment because it failed to allege that the liquor was transported for purposes of sale, and, in his brief, calls attention to the language in the caption of the act passed at the First Called Session, of the Thirty-Seventh Legislature, p. 233 (Vernon’s Ann. Pen. Code Supp. 1922, art. 588(4 et seq.), —insisting that the expressions in the caption and the, failure to incorporate same in the body of the law, either makes said law void or necessitates the reading into the law of the expression “transport for the purpose of sale” found in the caption. We quote the caption:

“An act to repeal section 31 and to amend sections 1 and 2 of chapter 78 of the General Laws of the Second Called Session of the Thirty-Sixth Legislature, and to add thereto section 2a, 2b, 2c, 2d, and E, and to amend the caption to conform thereto, making it unlawful for any person, directly or indirectly, to manufacture, sell, barter, exchange, transport, export, deliver, solicit, take orders for, or furnish spirituous, vinous or malt liquors, or medicated bitters capable of producing intoxication, or any other intoxicants whatever, or any' equipment for making' such liquors, or to possess or receive for the purpose of sale any such liquors herein prohibited.
“Declaring that it shall be unlawful for any person, directly or indirectly to manufacture, sell, barter, exchange, transport, export, deliver, solicit, or take orders for, or furnish any spirituous, vinous or malt liquors, or medicated bitters, or any potable liquor, mixture, or preparation containing in excess of one per cent, of alcohol, by volume, or any equipment for making any such Jiquors, or to possess, receive, or transport' for the purpose of sale any such liquors herein prohibited. Providing that it shall not be unlawful for any person to manufacture, sell, barter, exchange, transport, export, deliver, solicit, take orders for,, furnish, posséss, or receive for the purpose of sale, barter, exchange, transport, export, or. deliver spirituous, vinous, or malt liquors, or medicated' bitters after permit has been duly authorized .and given by the proper authorities, for medicinal, mechanical, scientific, or sacramental "purposes. Providing further that the purchaser, transporter, or possessor of any of the liquors herein prohibited shall not be held in law or fact to be an accomplice. Providing further that no person over tWenty-fiVe years of age convicted under any of the provisions of this act shall have the benefit of the Suspended Sentence Law, and declaring an emergency.”

That part of said caption referred to and relied on by appellant will be found at the end of the first sentence of the second paragraph of said caption which, in so far as it refers to the transporting of such liquor, appears clearly to refer to liquor containing more than 1 per cent, of alcohol by volume, which does- not affect the offense of which appellant was convicted. We are not of opinion that, in any event the insertion of the language upon which appellant bases his contention herein, would have any effect when the charge was. the transportation of liquor described as intoxicating. We preter-mit any discussion of whether the point raised would be of effect if the indictment charged transportation of liquor containing more than 1 per cent, of alcohol by volume. Such discussion here would be aside from any question actually before us, and would be but obiter dicta.

Appellant cites the case of M., K. & T. Ry. Co. v. Mahaffey, 105 Tex. 391, 150 S. W. 881, as supporting his contention, but an analysis of that opinion discloses nothing at variance with our conclusions as above stated. This being the only point relied upon by appellant, and being unable to agree with him, the judgment of the trial court will be affirmed.

On Motion for Rehearing.

Appellant raises no new questions, but insists that our opinion is not in consonance with M., K. & T. Ry. Co. v. Mahaffey, 105 Tex. 394, 150 S. W. 881. If not, that decision would not control, but we are still of opinion that our conclusion in no way conflicts with the holding in that ease. Our Supreme Court was there construing a doubtful law in the light of its caption. We are confronted by no such situation. In that case the caption manifested the clear purpose of the law to apply only to the allowance of attorney’s fees in suits upon claims of $200 or less. The provisions of the body of the statute restricting the amount of such attorney’s fees to $20, and making no reference to the amount involved in the suit, led to the attack on the law made in a suit on a claim for less than $200. The objection to the law was that it was obnoxious to section 35, art. 3, of our Constitution, which forbids embracing in one legislative bill more than one subject which must be expressed in the title of the act. Reasoning that to make such restricted attorney’s fees apply to suits where large amounts were involved was not within the legislative intent, and that it was the court’s duty to uphold the doubtful body of the statute, if possible, by construing it and the title to the act together, our Supreme Court correctly, as we think, held the law only to apply to claims in amount of $200 or less.

In the case before us we have no doubtful statute set forth in the body of the law whose true meaning can only be ascertained by a reference to its title. Both sections of the amended statute — the one referring to liquor which is intoxicating, and the one referring to liquor whose alcoholic content exceeds 1 per cent, by volume — forbid expressly the transportation of liquor of the kind mentioned, and allow possession and reception of such liquor only when for purposes other than sale. We think the case properly decided in the original opinion.

Being unable to agree with appellant’s contention, the motion for rehearing will be overruled.  