
    JOHNSON v. STATE.
    (No. 7071.)
    (Court of Criminal Appeals of Texas.
    Oct. 11, 1922.
    Rehearing Denied Dec. 20, 1922.)
    1. Intoxicating liquors <&wkey;202 — Indictment need not allege purpose of transportation.
    Indictment for transportation of intoxicating liquor need not allege transportation was for purpose of sale.
    2. intoxicating liquors <&wkey;236(2G) — Evidence of transportation held sufficient.
    Evidence held sufficient to sustain a conviction for transportation of intoxicating liquor.
    3. intoxicating liquors <&wkey;438 — Possession when found not necessary to guilt of transportation.
    To render defendant guilty of transporting intoxicating liquor, he need not have been in possession of or near it when it was found on a railroad coach.
    4. Criminal law <&wkey;829(I8) — Rule entitling accused to have defense presented in an affirmative way held not infringed by refusal of charge in view of charge given.
    Where defendant presented no affirmative defense, but simply denied the truth of facts testified to by state’s witness, there was no infringement of the rule that an accused is entitled to have his defense presented in an affirmative way, by refusal of charge to acquit if they believed, or had a reasonable doubt, that a thing which witness said defendant did was done by another; but the defense was fully covered under the general charge of reasonable doubt and presumption of innocence.
    On Motion for Rehearing.
    5.Criminal law <&wkey;f 144(13) — On appeal evidence viewed from staters standpoint.
    On appeal from a conviction, in testing the sufficiency of the evidence, it is viewed from the state’s standpoint.
    <&wkey;>3Tor other oases see same topic and KEY-NUMB1SR in all Key-Numbered Digests and Indexes
    Appeal from District Court, Titus County; R. T. Wilkinson, Judge.
    Cale'Johnson was convicted of transporting intoxicating liquor, and appeals.
    Affirmed.
    Wilkinson & Cook, of Mt. Pleasant, for appellant. '
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction is for the transportation of intoxicating liquor, punishment assessed being two years in the penitentiary.

Appellant sought to quash, the indictment for its failure to allege that- the transportation was for the “purpose of sale.” This exact question has been settled against appellant’s contention in Crowley v. State (Tex. Cr. App.) 242 S. W. 472; Stringer v. State (Tex. Cr. App.) 241 S. W. 159; Ex parte Mitchum (Tex. Cr. App.) 237 S. W. 936; Copeland v. State (Tex. Cr. App.) 244 S. W. 818 (not yet [officially] reported).

The sufficiently of the evidence to sustain the conviction is questioned.- The city marshal saw appellant with two suit cases going towards a passenger coach which was standing on a side .trade. The officer immediately followed, and within two or three minutes found only appellant and the newsboy Jm the coach. In the negro compartment he found two suit cases containing four gallons of whisky. No other suit cases were in the coach. Appellant denied ownership, also denied that he had carried the suit cases and placed them in'the car. A single question of fact was thus presented to the jury, which they settled in favor of the state. It was within their province to accept either statement, and we would not be authorized to disturb the verdict. There was no error in refusing the requested instruction to acquit. The court properly declined to instruct- the jury to return a verdict of not guilty if the liquor was found in the coach, but “said whisky was not in the possession of defendant, or anywhere near the defendant.” Appellant might not have been in possession of the whisky when it was found, nor near thereto, and still have been guilty of transporting it.

Appellant requested a special charge to the effect that the jury should acquit if they believed, or entertained a reasonable doubt, that the suit cases containing the whisky were placed in the coach by some one other than accused. The contention is made that the failure to give such, instruction was viola-tive of the principle consistently recognized by this cohrt that an accused is entitled to have his defense submitted in an affirmative way. We do not regard the refusal of the charge as an infringment upon the well-established rule. No. affirmative defense was presented by appellant He simply denied the truth of the facts testified to by the state’s witness. Under the facts of this case it occurs to us his defense was fully covered under the general charge of reasonable doubt and presumption of innocence.

The judgment is affirmed.

On Motion for Rehearing.

MORROW, P. J.

After the rendition of the verdict by the jury and its approval by the trial judge, it is the duty and practice of the court on appeal, in testing the sufficiency of the evidence, to view it from the state’s standpoint. In this ease the state’s witness knew the appellant, and saw him about 50 or 75 yards distant coming in the direction of the witness; that he saw him get up on a passenger coach which was standing on a certain track; that he was carrying two suit cases in his hands when he got on the coach, and when he went in it. The witness followed him in, and found therein no person save the appellant and the “News Butch,” who were in the back end of the car. The car was divided into two compartments — one for whites and the other for negroes. The suit cases were found in the negro compartment. A search was made by the witness for other suit cases, but none were found. The suit cases contained several gallons of com whisky.

No testimony was offered by the appellant except that he testified that he did not have the grips when he got on the car; that he did not have anything; that the whisky was not his.

As stated in the original opinion, there was a definite issue of fact. The state’s witness testified that the 'appellant got on the car with grips in his hand. The appellant testified and admitted that he got on the car, but said that he had no grips with him at the time. It was in daylight, the view was not obstructed,' and one or the other told the truth. If he had the grips and took them on the car, the circumstances, which are undisputed, are sufficient to identify them aside from the direct testimony of the state’s witness. The law does not warrant a disturbance of the verdict by this court. The motion for rehearing is therefore overruled.  