
    BROWN v. STATE.
    (No. 9066.)
    (Court of Criminal Appeals of Texas.
    May 13, 1925.
    Rehearing Denied Oct. 28, 1925.)
    1. Criminal law @=>1098, 1114(2) — Statement of facts, principally in question and answer form, not considered.
    Statement of facts, principally in question and answer form, cannot be considered under Vernon’s Ann. Code Cr. Proc. 1916, art. 846, but appellate court can consider only questions not involving ■ evidence.
    2. Intoxicating liquors @=3132 — Dean Law not unconstitutional as In conflict with Volstead Act.
    , The Dean Law (Vernon’s Ann. Pen. Code Supp. 1922, art. 544% et seq.), held not unconstitutional as in conflict with Volstead Act (U. S. Comp. St. Ann. Supp. 1923, § 19138% et seq.).
    3. Intoxicating liquors <@=>210 — Indictment for transportation need not allege purpose to sell.
    Indictment for transporting whisky need not allege that it was being transported for sale.
    4. Indictment and information @=>l 10(31) — Allegation of transportation of whisky, instead of intoxicating liquor, not reversible error.
    That indictment alleged transportation of whisky, instead of intoxicating liquor, held not reversible error, though such departure from statute was unnecessary.
    5. Criminal law @=3304(20) — Judicial knowledge that whisky is intoxicating liquor.
    Court of Criminal Appeals will take judicial knowledge that whisky is intoxicating and intoxicating liquor.
    On Motion for Rehearing.
    6. Criminal law @=>1098 — Statement of facts,, mostly in narrative form, considered.
    Statement of facts, mostly in narrative form,, considered, though reporter incorporated some questions and answers in it.
    7. Intoxicating liquors @=>238(2) — Whether whisky found in defendant’s house belonged to roomer, and that in automobile was being transported for medicinal purposes, held for jury.
    Whether whisky found in defendant’s house belonged to roomer, and whether defendant was transporting liquor in his automobile for medicinal purposes, held for jury.
    Commissioners’ Decision.
    Appeal from District Court, Jefferson County ; Geo. C. O’Brien, Judge.
    R. B. Brown was convicted of transporting, whisky, and he appeals.
    Affirmed.-
    A. L. Shaw, of Beaumont, for appellant. Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin,, for the State.
   BAKER, J.

The appellant was charged by indictment in several counts, hut the court in his charge limited the jury to the consideration of the third count, which charged him with unlawfully transporting “whisky” ; and the jury returned a verdict of guilty and assessed his punishment at three years’ confinement in the penitentiary.

The record discloses in this case that the statement of facts is principally in question and answer form, which we are prohibited from considering under article 846 of Vernon’s Ann. C. C. P. 1916, and are limited to considering only the questions raised relative to-other matters which do not take into question the evidence in the case.

In the outset appellant complains of a conflict between what is known as the' Dean Law (Vernon’s Ann. Pen. Code Supp. 1922, art. 544% et seq.), and the Volstead Act (U. S, Oomp. St. Ann.' Supp. 1923, § 10138% et seq.), and the publication of said acts which we-deem it unnecessary to go into any lengthy discussion of, as. this court has repeatedly held against his contentions along this line. Ex parte Gilmore, 88 Tex. Cr. R. 529, 228 S. W. 199; Goforth v. State (Tex. Cr. App.) 269 S. W. 98.

There is also complaint urged against said indictment because it does not allege that, said whisky was being transported for sale. This contention has been overruled by this-court. McNeil v. State, 93 Tex. Cr. R. 259, 247 S. W. 536; Bailey v. State, 97 Tex. Cr. R. 312, 260 S. W. 1057; Crowley v. State, 92 Tex. Cr. R. 103, 242 S. W. 472.

Appellant also complains of the indictment because it alleges whisky instead of intoxicating liquor. In the case of Tucker v. State, 94 Tex. Cr. R. 505, 251 S. W. 1090, this court held in effect that where the indictment charged that the defendant did unlawfully possess liquor capable of producing intoxication for the purpose of sale, the same was •sufficient, as the term “liquor” in prohibition •laws has often been termed synonymous with “intoxicating liquor,” and, while there was no necessity of the pleader in departing from the statutes, it was not reversible error.

It has often been held that this court will take judicial knowledge of the fact, that whisky is intoxicating and is intoxicating liquor. From the above, we are of the opinion that there is no reversible error in the matter complained of. We have disposed of nil the matters in this case which do not involve a consideration of the statement of facts, and, as above stated, on account of same being in question and answer form, we are prohibited from considering the other matters raised.

From the record as presented to us, we are •of the opinion that there are no reversible errors shown, and that the judgment of the lower court should be affirmed; and it is accordingly so ordered.

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 insists we were in error in not considering the statement ■of facts. It appears that the court reporter incorporated in it some questions and answers, but the most of it is in narrative form. For this reason we have concluded that perhaps the statement of facts should be considered. The testimony of the officers in substance is that they arrested appellant on the streets of Port Arthur and found in his possession two quarts of whisky. He was in an automobile at the time and traveling away from the direction of his home. They immediately procured a search warrant, went to his house, and in a room found 12 more • quarts of whisky. It was appellant’s contention, and he so testified on the trial, that the whisky at the house did not belong to him, but belonged to a party who had registered at his rooming house that morning. This evidence was controverted by the officers, who stated that no one was registered in the room where the whisky was found, but that it was vacant. Appellant claimed that he was transporting the liquor for medicinal purposes; -•that he had the “flu” a short time before his arrest, and intended going hunting either in the afternoon of the day he was arrested or the next day, and was taking the whisky to use as medicine while on such hunting trip. His evidence was supported by that of his wife and to some extent by a physician.

The jury were properly instructed, if they believed appellant was transporting the whisky for medicinal purposes, or entertained a reasonable doubt therof, they should acquit. The case does not present a state of facts wherein we would be authorized to interfere with the verdict of the jury. They were not compelled to accept the testimony of appellant or his witnesses, but the facts were such, as to render the truth of the defensive testimony a question solely for the jury’s determination. Hawkins v. State (Tex. Cr. App.) 270 S. W. 1025; Key v. State (Tex. Cr. App.) 270 S. W. 1027; Horak v. State (Tex. Cr. App.) 273 S. W. 601.

Appellant’s motion for rehearing is overruled. 
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