
    LEE v. STATE.
    (No. 7524.)
    (Court of Criminal Appeals of Texas.
    Oct. 3, 1923.
    Rehearing Denied Nov. 14, 1923.)
    1. Intoxicating liquors <&wkey;432 — State law not invalid by reason of conflict with federal law.
    The state law prohibiting the transportation of liquor is not void by reason of conflict with the federal law on the same subject.
    2. Criminal law <@=394 — Evidence of facts ascertained by search admissible though search unlawful.
    That information has been obtained by the unauthorized search of a state officer does not preclude the introduction of evidence of facts ascertained.
    3. Intoxicating liquors -<@=138 — “Transport” as used in statute prohibiting transportation of liquor defined.
    Under Pen. Code 1911, art. 10, the word “transport,” as used in the statute prohibiting the transportation of liquor, must be given the meaning understood in the common language; that is, the carrying or conveying from one place, locality, or country, to another.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Transport — Transportation.]
    4. Criminal law <&wkey;800(4) — Denial of instruction defining transportation in prosecution therefor held not error.
    In a prosecution for transporting intoxicating liquor, where accused was shown to have been at a depot with a suit case containing liquor, and having two or three quarts in his pockets, and was arrested while walking from the depot towards a train with the intent to board it, denial of an instruction defining the term “transporting intoxicating liquors” was not reversible error, under Code Cr. Proc. 1911, art. 743.
    5. Intoxicating' liquors <3=438, 239(2) — Instruction that conviction for transportation was unauthorized unless transportation had been complete held properly denied.
    Where accused, charged with the transportation of liquor, was shown to have waited in a depot with a suit case of liquor and to have been arrested while going from the depot to a train with intent to board it, held, that the offense was complete and that an instruction that conviction would not be authorized unless - the transportation had been completed was properly denied.-
    6. Intoxicating liquors <3=224 — In prosecution for transporting, charge that possession for sale would support no inference of guilt held unnecessary.
    Where defendant, charged with transporting intoxicating liquor, was arrested while carrying a suit case of liquor from a depot to a train with intent to board it, it was incumbent upon him to explain his connection with the liquor, and, where he failed to introduce any evidence, a charge that the possession of liquor for the' purpose of sale would support no inference of guilt was not required.
    7.Criminal law <3=365(1) — Evidence of possession for sale in prosecution for transporting held part of res gestae.
    In a prosecution for transporting intoxicating liquor, evidence of possession for the purpose of sale held part- of the res gestae and admissible.
    <S=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Morris County; R. T. Wilkinson, Judge.
    Jesse Lee was convicted of unlawfully transporting intoxicating liquor, and he appeals.
    Affirmed.
    French & Price, of Daingerfield, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for the unlawful transportation of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of two years.

The sheriff of Morris county testified that on January 10, 1922, about 2:50 o’clock in the morning, he saw appellant at the depot with a suit case of liquor and two or three quarts in his pocket; that in the suit case were found six half-gallon fruit jars of whis-ky. When the train arrived, appellant walked out of the depot towards the train, carrying the suit case with him, when he was stopped by the sheriff. The distance from the waiting room, in which appellant remained until the train arrived, to the train, was about 14 feet. Appellant was seen by the witness Hart when he called for a ticket to Greenville. Appellant was told that no tickets were sold to Greenville at night and that he would have to get on the train and. pay his fare. When the first train arrived, the witness did not see the negro do anything; but, when the last train going towards Greenville arrived, he picked up his grips and went out of the waiting room,' when 'he was arrested by the sheriff. This occurred- at Daingerfield in Morris county. Appellant told the witness Hervey that he was on his way to Greenville. Appellant’s wagon and mules were in town some 300 yards away from the depot. No testimony was introduced in behalf of the appellant.

That the state law prohibiting the transportation of liquor was not void by reason of its conflict with the federal law was decided by this court in Ex parte Gilmore, 88 Tex. Cr. R. 529, 228 S. W. 199. This case has been frequently followed.

That information obtained by the unauthorized search by a state officer does not preclude the introduction of evidence of the facts ascertained was upheld in Welchek v. State, 93 Tex. Cr. R. 271, 247 S. W. 524, which has also been followed.

The statute does not define “transport.” Under the law, it is to be given the meaning “understood in common language,” taking into consideration the context and subject-matter. Penal Code, art. 10. In common language, “transport” signifies the carrying or conveying from one place, locality, or country to another. Cyc. of Law & Proc. vol. 38, p. 946. There might arise a case where the peculiarities in the testimony might make it necessary to give the definition or at least some explanatory statement relative to what is embraced within the term “transporting intoxicating liquors.” As applied to the present case, however, it would seem unnecessary; at least, not such a fault in the charge as to demand a reversal of the case under article 743 of the Code of Criminal Procedure.

According to the undisputed evidence, appellant had in his possession a quantity of intoxicating liquor packed 'in a suit case which he had brought from a certain locality to the depot, and was, at the time of his arrest, conveying the suit case containing the liquor from the depot to the train, which was going in the direction of Greenville, to which point the evidence showed that it was his intention to travel. The jury could not have been misled by the failure to. give the definition of the word “transport” as used in the statute.

We are unable to sanction the position taken by the appellant that the jury should have been told that a conviction would not be authorized unless he had completed the transportation. The offense wouldi be complete after appellant had progressed as far on his journey as the evidence in .this case revealed.

The facts proved put upon appellant the burden of explaining his connection with the liquor. Inasmuch as he introduced no evidence, no charge to the effect that the possession of the intoxicating liquor for the purpose of sale would support no inference of guilt was required. Such a charge might, under some circumstances, become pertinent, but we think not in the present case. The evidence of possession of the liquor for the purpose of sale was part of the res gestee available to the jury in determining the intent with which appellant was acting in conveying the liquor.

The record revealing no error, the judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

Appellant insists that the offense of “transporting” intoxicating liquor is not complete until the liquor has reached its destination. Our views upon that question are not in accord with such contention. They have been expressed to the contrary in Maynard v. State, 93 Tex. Cr. R. 580, 249 S. W. 473; Lamb v. State (No. 7775) 255 S. W. 424, opinion June 29, 1923, rehearing overruled October 31, 1923; Black v. State (No. 7780) 255 S. W. 731, opinion October 31, 1923.

The motion for rehearing is overruled.  