
    RIDDLE v. STATE.
    (No. 11362.) .
    Court of Criminal Appeals of Texas.
    Feb. 1, 1928.
    Rehearing Denied March 28, 1928.
    I.Intoxicating liquors @=229 — Where defendant had knowledge of unlawful act, ownership of automobile is inconsequential in determining guilt of transporting liquor.
    In prosecution for transporting intoxicating liquor, ownership of automobile in which liquor was transported is inconsequential, where defendant’s knowledge of unlawful act was evident.
    2. Intoxicating liquors 138 — Defendant may be convicted of transporting liquor, where journey was interrupted by officers’ pursuit or ended or begun at point where arrest was made (Pen. Code 1925, art. 666).
    Defendant may be guilty of transporting intoxicating liquor under Pen. Code 1925, art. 666, where journey was interrupted by pursuit by officers or ended or begun at point where arrest was made, since in each case legal effect was the same.
    3. Criminal law @=814(17) — No charge on circumstantial evidence is necessary unless evidence is wholly circumstantial.
    Unless evidence in prosecution for transporting liquor is wholly circumstantial, no charge on law of circumstantial evidence is necessary.
    4. Criminal law @=665(4) — Permitting officer to testify while witnesses were under rule held not abuse of discretion (Code Cr. Proc. 1925, art. 644).
    Court held not to have abused discretion in permitting officer to give testimony while witnesses were under the rule under Code Or. Proc. 1925, art. 644.
    5. Intoxicating liquors @=229 — In liquor prosecution testimony witness, saw defendant where automobiles were parked and found where fruit jars had been left held competent on intent and refusal to eliminate by instruction not error.
    In prosecution for transporting liquor, refusal to instruct jury to disregard testimony that witness had seen defendant where automobiles were parked and had examined ground and' found where fruit jars had been left held not error, since such testimony was circum-: stance showing defendant’s intent and course of conduct with reference to transaction in question, and court did not err in refusing to single out such fact and instruct jury to disregard it.
    6. Criminal law <§=814(6) — Where evidence presented no affirmative issue touching defendant’s knowledge of unlawful act, refusal of charge on subject of want of knowledge was not prejudicial error.
    Where in prosecution for transporting intoxicating liquor there was no affirmative issue presented by evidence touching defendant’s knowledge of unlawful act in question, refusal to give special charge on subject of want of such knowledge was not prejudicial error.
    On Motion for Rehearing. ‘
    7. Criminal law <§=814(17) — Instruction on circumstantial evidence held properly refused under evidence in prosecution for transporting liquor.
    Refusal of charge on circumstantial evidence held not error in prosecution for transporting liquor, in which it was shown that when car in which defendant was riding was intercepted by officers, defendant took fruit jar of whisky from car and broke it.
    8. Intoxicating liquors @=236(20) — Evidence held sufficient to support conviction for transporting liquor.
    In prosecution for transporting intoxicating liquor, evidence that when officers overtook ear in which defendant was riding defendant took jar of whisky from car and broke it lietA sufficient to support conviction.
    Appeal from District Court, Titus County; R. T. Wilkinson, Judge.
    Joe Riddle was convicted of transporting liquor, and lie appeals.
    Affirmed.
    Sturgeon & Sturgeon, of Paris, for appellant. v
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J..

The conviction is for unlawfully transporting intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

Some days before the arrest, appellant was observed by the witness, Mrs. Grishom, near her house and seen carrying fruit jars from one automobile and placing them in another. She testified that she telephoned to Officer Gann, but did not disclose the purport of the message or its date. On the day of the transaction on-^hich this prosecution rests, Officers Gann and Robison stationed themselves in an automobile near the Grishom home, and while there, observed an automobile approaching. It was turned aside into another road and followed by the officers mentioned. The car mentioned was stopped by the persons occupying it, and two of them, appellant and Ray, got. out of the ear and stood upon the ground. Keith remained in the car until the officers reached it. When the officers came to a point a few feet from the car, appellant reached it, seized a jar, and broke it. on the door of the car. There was liquid in the jar which-, according to Gann and Robison, had the odor and taste of whisky. Ray claimed to own the car.

The direct evidence unequivocally connects the appellant with the possession of the whisky and an effort to destroy the evidence against him and his companions. By direct evidence he is connected with the automobile from which the whisky was taken. Manifestly, the whisky was either transported in the automobile in which he was riding or it was placed in the car at the point where the car was stopped for the purpose of carrying it away. Appellant’s knowldege of the unlawful act being evident, the ownership of the car was inconsequential. See Riojas v. State, 102 Tex. Cr. R. 258, 277 S. W. 640. If the journey was interrupted by the pursuit by the officers or ended or begun at the point where the arrest was made, the legal effect was the same. Article 666, P. O. 1925; Lamb v. State, 95 Tex. Cr. R. 457, 255 S. W. 424; Wade v. State, 103 Tex. Cr. R. 628, 281 S. W. 1049. Unless the evidence was wholly circumstantial, no charge on the law of' circumstantial evidence was necessary. In refusing such a charge, no error was, in our judgment, committed.

The complaint that while the witnesses were under the rule the court permitted an officer to give testimony reveals no abuse of the court’s discretion. Article 644, O. O. P. 1925; Vernon's' Ann. Tex. Grim. Stat. 1925 (Code Or. Proc.) vol. 2, pp. 82, 83; Dobbs v. State, 94 Tex. Cr. R. 398, 251 S. W. 1057.

, The complaint of the testimony of the witness Mrs. Grishom to the effect that a day or two before the present transaction, she had seen the appellant near her house transferring a fruit jar from one car to another seems to relate to its weight rather than its admissibility.

There was a request to instruct the jury that they, must disregard the testimony of Mrs. Sam Grishom to the effect that she had seen the appellant near her home on several occasions where different automobiles had been parked; that she had examined the ground and found where fruit jars had been left. This testimony was a circumstance tending to show the intent of the appellant and his course of conduct with reference to the particular transaction in question, and the court was not in error in refusing to single out that fact and instruct the jury to disregard it. There being no affirmative issue presented by the evidence touching his knowledge of the unlawful act in question, the refusal of the court to give a special charge upon the subject of his want of knowledge was not prejudicial error.

The evidence is deemed sufficient to support the verdict, and an affirmance is ordered.

On Motion for Rehearing.

LATTIMORE, J.

We have reviewed the record in1 the light of appellant’s contentions in his motion. Appellant introduced no testimony. Mr. Gann and Mr. Robison swear positively that they saw appellant and two others drive in a car to a certain point, at which point they ' were intercepted. They did not see the officer until he was close to them. Immediately upon seeing him, appellant, in the language of Robison, “reached over in the car and grabbed up a fruit jar of whisky” and broke it on the side of the car. This testimony fixes beyond the possibility of dispute the transportation of the whisky, appellant’s knowledge of the fact that it was in the car, and the. fact that appellant was himself an occupant of said car. This seems to put the question of his guilt beyond the pale of circumstantial evidence. The conviction was for transporting. Both state witnesses testified that when the jar was broken they smelled whisky, ■ and Mr. Gann got some of it up from the running board of the car and tasted it and said it was whisky.

We are unable to agree with appellant’s contention that we erred in our former opinion holding the case not one on circumstantial evidence. We are of opinion the facts are amply sufficient to show the guilt of the accused.

The motion for rehearing will be overruled. 
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