
    WEBB v. STATE.
    (No. 11529.)
    Court of Criminal Appeals of Texas.
    April 18, 1928.
    Rehearing Denied June 28, 1928.
    1. Intoxicating liquors <§=>202 — indictment for transportation was not defective for failure to allege purpose.
    Indictment for transporting intoxicating liquor was not subject to be quashed because of its failure to allege that liquor was transported for purpose of sale.
    2. Intoxicating liquors <§=>203— Indictment need not allege that liquor was knowingly transported.
    It need not be alleged in indictment for transporting intoxicating liquor that defendant knowingly transported the liquor.
    3» Intoxicating liquors <§=>236(20) — Evidence held to support conviction for transporting liquor.
    Evidence that defendant drove to parking place near dance hall which he had several times left, and, when confronted by officers, threw out bottle of whisky, supported conviction for transporting whisky.
    
      4. Criminal law <5=>784(l)—Evidence that defendant threw bottle of whisky from car did not call for instruction on circumstantial evidence.
    Where defendant, when confronted by officers, threw bottle of whisky from his car, and then fled, instruction on circumstantial evidence was not required.
    5. Criminal law <§=>1172(1)— Defendant, not prejudiced by forifts of verdict submitted, could not complain.
    Where accused was not prejudiced by submission of two forms of verdict, one for use in case of acquittal and the other in event of conviction, he had no ground for complaint.
    6. Criminal law <§=>394—Evidence concerning whisky thrown from car by defendant was not excluded as by wrongful search (Code Cr. Proo. 1925, arts. 4a, 727a).
    Code Cr. Froc. 1925, art. 4a, prohibiting searches without warrant, and article 727a, excluding evidence unlawfully obtained, did not render inadmissible evidence concerning bottle of whisky thrown by defendant from his car when confronted by officers.
    Commissioners’ Decision.
    Appeal from District Court, Wheeler County; W. R. Ewing, Judge.
    Charlie Webb was convicted of transporting intoxicating liquor, and he appeals.
    Affirmed.
    Alexander & Baldwin, of Fort Worth, 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.

Appellant’s contention that the indictment should have been quashed because of the failure of the pleader to allege that the liquor was transported for the purpose of sale is overruled. Parrott v. State, 100 Tex. Cr. R. 85, 271 S. W. 923. Nor is the position tenable that it was necessary that it be alleged in the indictment that appellant knowingly transported the liquor. Cox v. State, 107 Tex. Cr. R. 19, 294 S. W. 564.

The evidence is sufficient to support the conviction, and the refusal to instruct the jury to acquit was proper. Appellant was at a dance. Officers watched him. Appellant frequently left the dance hall, got in a car, drove away, and returned in about 20 minutes. The last time he returned, officers first saw him 60 or 75 feet from the point where he later parked. Appellant was driving the car, and accompanying him was one Beck. Appellant drove the car to the parking point. One of the officers flashed a light on the ear. Appellant reached down between Beck and himself, secured a bottle, and threw it from the car. The bottle fell near the officers,' and was immediately secured by one of them. It contained one-half pint of whisky. After throwing the whisky from the car, appellapt fled, leaving his car. He did not return. Some of his friends carried his car away. These facts were undisputed. Appellant offered no testimony.

We are unable to agree with appellant that the failure of the court to' submit an instruction covering the law of circumstantial evidence constituted error. The facts proven were in' such close juxtaposition to the main fact to be proved as to be equivalent to direct testimony. In his Annotated Penal Code of Texas, § 1874, Mr. Branch lays down the rule as follows:

“If the facts proven are in such close juxtaposition to-the main fact to be proved as to be equivalent to direct testimony, a charge on circumstantial evidence is not required.”

The text is supported by the following authorities: Holt v. State, 9 Tex. App. 582; Crews v. State, 34 Tex. Cr. R. 543, 31 S. W. 373; Cabrera v. State, 56 Tex. Cr. R. 141, 118 S. W. 1054; Bass v. State, 59 Tex. Cr. R. 191, 127 S. W. 1020.

The court submitted two forms of verdict, one to be used in ease of an acquittal, the other to be used in the event of a conviction. There is nothing in the record suggesting that the action of the court in this respect prejudiced accused. There is, therefore, no just ground for complaint. Cortinas v. State, 106 Tex. Cr. R. 615, 294 S. W. 561, and authorities cited.

Appellant was not entitled to invoke the provisions of articles 4a and 727a, C. C. P. 1925, against the reception of the testimony of the officers. The whisky was not found as a result of the search of the car. No search warrant was necessary. Johnson v. State, 106 Tex. Cr. R. 124, 290 S. W. 539.

The charge of the court made a fair presentation of the law, and we find no merit in appellant’s contention that the court erred in overruling his exceptions to said charge and in refusing to give his requested instructions.

Other questions are presented which we have not undertaken to discuss. An examination, however, of all of appellant’s contentions leads us to the conclusion that reversible error is not presented.

The judgment is 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.

HAWKINS, J.

Appellant has filed a lengthy motion for rehearing, again insisting upon each proposition originally relied upon for reversal. We have patiently examined the authorities cited and the arguments upon each proposition presented. We have not been led to the conclusion that any error was committed in the former disposition of the case.

The motion for rehearing is overruled. 
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