
    JONES v. STATE.
    (No. 8886.)
    (Court of Criminal Appeals of Texas.
    April 29, 1925.
    Rehearing Denied June 10, 1925.)
    1. Intoxicating liqiuors &wkey;>239(l) — Charge not -embracing exceptions in statute other than that relied on proper.
    Where issue was whether accused was transporting intoxicating liquors for medicinal purposes, charge limited thereto, and which did not embrace all the exceptions in statute, including sacramental and mechanical purposes, 'held, proper.
    On Motion for Eehearing.
    2. Intoxicating liquors &wkey;»2IO — Indictment need not allege manner of transportation.
    Indictment for unlawful transportation of intoxicating liquor need not specify that same was transported in ear, wagon, areoplane, or in any specific manner, or define transport.
    3. Criminal law <@=j1 169(6) — Testimony accused negro was arrested near negro festival, at which participants had dice and whisky, heid harmless.
    In prosecution for unlawfully transporting intoxicating liquor, where accused was apprehended near negro festival to which he was apparently going, but claimed he was taking whisky to his sick wife, testimony as to’ character of gathering, and that they had dice and whisky there, held harmless, where accused was given the lowest term.
    4. Intoxicating liquors <&wkey;>238(l) — Testimony accused was transporting liquor for medicinal purposes not conclusive.
    In prosecution for unlawful transportation of intoxicating liquors, testimony of accused, and his witnesses, that he was transporting it for medicinal purposes held not conclusive; jury not being required to accept his testimony or that of any other witnesses. ,
    Commissioners’ Decision.
    Appeal from District Court, Limestone County; J. K. Bell, Judge.
    Jack Jones was convicted of unlawfully transporting spirituous liquors, and be appeals.
    Affirmed.
    Eobert M. Lyles, of Groesbeck, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BAKEE, J.

Appellant was indicted, tried and convicted in the Eighty-seventh district court of Limestone county for unlawfully transporting spirituous liquors, and his punishment assessed at one year in the penitentiary.

Complaint is made by appellant to the refusal of the trial court to sustain his motion to quash the indictment, alleging that said indictment is insufficient to apprise the defendant of the nature and cause of the accusation against him, and because the same is insufficient to base a successful plea of judgment of former acquittal or conviction in bar of a subsequent prosecution for the same offense. The indictment in the ease follows the statute, and we are unable to agree with the contentions made by the appellant in this case to the effect that the state under the statute would have to allege with certainty at what particular place the defendant was charged with transporting whisky and in what particular way he was transporting same, in order to comply with the requirements of the law. This court has decided against appellant on this contention. Maynard v. State, 93 Tex. Cr. R. 580, 249 S. W. 473.

Appellant complains of the action of the trial court in permitting the officers Marvin Wooton, Jose Popejoy, and John McBay to testify to having arrested the appellant in a car with 3 or 4 other negroes within about 100 feet of a house where a negro festival was in progress, and that said officers at said time arrested 44 other negroes at said house, and that the negroes at said festival were shooting dice and had whisky there. The evidence in the record discloses that the defendant, together with about 4 other negroes, was in an automobile within about 100 feet of the house where the festival was in progress when the officers arrested 'them and searched the car, in which they found two gallons of whisky in fruit jars, and some small empty bottles. This evidence was undisputed, the defendant admitting that he had the whisky, but contending that he found it, before reaching the supper, at or near an old house and by the side of the road, and that he was taking it home for medicinal purposes, to be used by his sick wife. The state contended in this instance that he was transporting said whisky in violation of the law, and the sole defense was that he was transporting the whisky for medicinal purposes. Now, in view of the testimony as we see it from the record, the defendant having the whisky within 100 feet of where the festival was, going on, and the evidence disclosing that there was whisky at the festival other than that which the defendant had in the car, and that there were empty bottles found in the car that the defendant was riding in, it would at least he a circumstance to show in behalf of the state that the defendant had the whisky in the car for the purpose of sale, and a circumstance to show in behalf of the state that he had either gotten the whis-ky from the festival and did not And it, as contended by him, or that he was carrying the whisky to the festival and not to his wife, and we take it that the objection raised would go more to the weight of the testimony than to the admissibility of same in regard to the whisky, and see no error in the ruling of the trial court. Land v. State, 93 Tex. Cr. R. 470, 247 S. W. 554.

Upon the' other hand, with reference to the objection as to gambling going on at the festival, it presents a more serious question for our consideration. We are unable to see from any standpoint how the testimony of the state’s witnesses to the effect that the other negroes or parties at the festival were shooting dice would throw any light whatever on the issue as to -whether the defendant was unlawfully transporting whisky. However, it was an undisputed fact by both the state and the defendant that he was transporting the whisky in question, and the only issue between the state and the defendant was as to whether it was an unlawful transportation or whether the defendant was transporting same for medicinal purposes, and the admission of the testimony in regard to the gambling, though error, in our judgment is harmless, because there was no contention by either side that the defendant was in any way connected with the gambling; and, the jury having given the defendant the lowest punishment, and the court having charged the jury affirmatively on the defendant’s defense as to transporting for medicinal purposes,. we are of the opinion that the admission of said testimony does not constitute reversible error as shown from the record in this case. ’

There is further complaint raised against the charge of the court because the court limited the transportation of the whisky to medicinal purposes, while attorneys for appellant contend that it is too restrictive, an,d that the court’s charge should have embraced all of the exceptions named in the statute, including sacramental and mechanical purposes, etc. We are unable to agree to this contention, because there was no issue in the case that the defendant was transporting for any other than medicinal’purposes, and we think the court properly applied the law to the facts by covering that issue of the case only.

After- a careful examination of the entire record, we fail to find any reversible error in the trial court, and the judgment is accordingly affirmed.

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.

On Motion for Rehearing.

LATTIMORS, J.

The motion to quash the indictment, based on the fact that same merely charged that appellant “transported” the alleged intoxicating liquor, was properly overruled. It was not necessary to say that same was transported in a car, a wagon, in an airplane, or in any other specific manner any more than it was necessary to say that it was transported in a glass bottle, a stone jug, a fruit jar, or some other named container. The word “transport” is one of ordinary meaning and common understanding, and in a case such as the one before us, where the liquor was undeniably carried from one place to another, we would not deem it nec-ecessary to even define it. In our opinion the motion to quash was without merit.

The proof showed that at the time of their arrest appellant and his companions were going up to a negro festival or supper. The officers testified that at the same time they arrested appellant they arrested a group of negroes at said place who had dice and whisky. The character of the gathering to which appellant and his group were apparently going might have weight as refuting the claim of appellant that he was taking Qie two gallons of whisky found in his car to his sick wife. In any event, the jury having given him the lowest term, the admission of the testimony, even if improper, would seem incapable of evil effect.

Appellant also contends that he met and discharged the burden placed on him by statute to show that he was transporting the liquor for one of the excepted purposes; his claim being that he was transporting it for medicinal purposes. The stories told by appellant and his witnesses were in effect that ho and they were driving around in a car, and the lights of the car fell on a sack which was by the side of the road, and in which on examination appellant discovered four half gallon jars of whisky. He and some of the others took a drink, and put two of the jars in the front of the car and two in the back. They all agree that, after they learned of the supper being held out in the country, they started to it, and just as they arrived they were held up by the officers and arrested. Appellant made a written confession in which he made substantially the above statements. He made no claim at that time of the fact that he was transporting the liquor for any medicinal purpose. 1-Ie and each of his wit-neses averred that they had started to the festival. There is no ironclad duty imposed on the jury to accept as true the testimony of the accused and his witnesses, or any other witnesses. By law the jury are the judges of the credibility of the witnesses and the weight to be given their testimony. The fact that they rejected the explanation made by appellant on the witness stand, and his claim that ho was taking the four jars of whisky so found by him by the roadside, and carried by him out to this festival, home for medi.cine for his wife, evidently did not appeal to the judgment of the jury.

The motion for rehearing will be overruled. 
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