
    CASSIUS v. STATE.
    (No. 11642.)
    Court of Criminal Appeals of Texas.
    May 23, 1928.
    Rehearing Denied June 20, 1928.
    I.Criminal law <§=>772(6) — Defense to prose- ■ cution for transporting liquor that defendant did not know liquor was in his car should be affirmatively presented.
    In prosecution for transporting intoxicating liquor, defense that liquor found in defendant’s car belonged to another and that defendant did not know it was in ear owned and driven by him should be affirmatively presented.
    2. Intoxicating liquors <§=239 (4) — Charge to acquit of transporting liquor if defendant did not know of presence of liquor sufficiently presented defense of lack of knowledge.
    In prosecution for transporting liquor, charge to acquit if jury believed that defendant did not know intoxicating liquor was in his car held to- present defense that liquor was put in car by another and that defendant did not know of its presence in ear.
    3. Intoxicating liquors <§=167 — Pecuniary interest in liquor found in defendant’s car is not necessary for conviction for transporting liquor, defendant’s knowledge of whisky in car being sufficient.
    In prosecution for transporting liquor, proof that defendant owned liquor or had any pecuniary interest therein held not necessary to make out case, it being sufficient that defendant drove automobile and knew whisky was in car at time he transported it.
    4. Criminal law <®=814(17) — Where evidence showed defendant drove car containing liquor and only question was his knowledge, omission to charge law of circumstantial evidence was not error.
    Where evidence showed without dispute that defendant drove car in which liquor was transported, and only question was as to his knowledge that liquor was in car, failure of court to give charge on law of circumstantial evidence was not error.
    5. Criminal law <§=814(17) — Where direct testimony shows offense and only question is one of intent, case is not one on circumstantial evidence.
    When main facts making out offense against law are shown by direct testimony and only question left is one of intent, case is not one on circumstantial evidence.
    On Motion for Rehearing.
    6. Intoxicating liquors <§=167 — Defendant driving car knowing it contained liquor held guilty of transporting liquor, though without interest in liquor.
    Where defendant owned automobile containing intoxicating liquor and was driving automobile when apprehended with knowledge that liquor was in it, defendant was guilty of transporting liquor, though it was placed in automobile by another and though he had no interest in it.
    7. Criminal law <§=1090(19) — Objection to eon* tinuing trial in defendant’s absence should be raised at trial and preserved by bill of exceptions, and cannot be raised on appeal by ex parte affidavits.
    If on account of sickness defendant is unable to be in courtroom and trial proceeds in his absence, objection should be urged when such condition arose or on motion for new trial, and question should be preserved and brought before Court of Criminal Appeals for review by proper bill of exceptions,' and such matter cannot be raised on appeal by ex parte affidavits.
    
      ' Appeal from District Court,-Nacogdoches’ County; C. A, Hodges, Judge.
    Lee" Cassius was convicted of transporting: intoxicating liquor, and lie appeals.
    Affirmed.
    John M. Cobb, of Houston, and Adams & McAlister, of Nacogdoches, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMOBE, J.

Conviction for transporting intoxicating liquor; punishment, one year in the penitentiary.

Officers in possession of information went to a certain point on a road out from Nacog-doches, and presently appellant and one Cor-tinas came along in a ear. The officers stopped the car and one of them hailed ithe occupants. . Appellant was driving the car, and as the officers walked up to it Cortinas broke a glass jug. This broken jug and another one full of whisky were right in front of the driver’s seat. The broken jug also had contained whisky.

The record is without bills of exception. However, appellant brings forward two complaints, based on his exceptions to the court’s charge. One of said complaints is that the court did not charge affirmatively upon the defensive theory supported by the testimony of appellant. He claimed that he did not know that the whisky in question was in the car, and that if same was in .said car, it was in the control and possession of Cor-tinas. Appellant testified on the trial in line with this contention. He said that on the afternoon in question he had driven out to the home of the Cortinas family, and that while there he lent his ear to George Corti-nas, who took same and went somewhere; appellant said he did not know where. When he returned appellant said he got into the car and Cortinas moved over and appellant took the wheel, and drove the car several miles and to the point where the officers stopped them and arrested them. He said he did not know there was any whisky in the ear until Cortinas broke the jug mentioned by the officers. It would appear useless for us to discuss the many authorities in this state holding that the defensive theory should- be affirmatively presented. However, examining the court’s charge in this case, we find that the court told the jury as follows:

“Now, bearing in mind the foregoing rules of law, if you believe from the evidence, beyond a reasonable doubt, that the defendant, Dee Cassius, on or about the time alleged in the indictment, in the county of Nacogdoches and state of Texas, did then and there knowingly transport intoxicating liquor, you will find the defendant guilty and assess his punishment at confinement in the state penitentiary for any term you see proper, not less than one nor more than five years. If you do not so believe, or if you have a reasonable doubt thereof, you will find the defendant not guilty. Or if you believe the defendant did not know of the intoxicating liquor-being in the car, or if you have a reasonable--doubt thereof, you will find him ‘not guilty.’ ”

It is difficult for us to see just how the-court could have more plainly or pointedly told the jury that if they believed appellant did not know intoxicating liquor was in the-car, or if they had a reasonable doubt thereof, thfey should find him not guilty. It would-not be necessary under any of the authorities,, in order to make out a case, to show that appellant owned the whisky in question or that he had any pecuniary interest in it. It might •have been entirely in the control and- possession of Cortinas; but if appellant drove the-car and knew the whisky was in the car- at the time he so transported it, he would be guilty under the law.

The other point insisted upon by appellant in his brief is that the court erred in-failing to charge the jury the law of circumstantial evidence. We are unable to perceive anything in the facts of this case demanding such charge. Beyond any question appellant did drive the car in which the liquor was-transported. This fact was established by direct testimony. The only remaining question was as to his knowledge, which was raised' by his testimony, and was submitted to the-jury in the charge. When the main facts making out an offense against the law are-shown by direct testimony, and the only question left is one of intent, ate., the ease is not one on circumstantial evidence. Charles v. State, 85 Tex. Cr. B. 534, 213 S. W. 266; Givens v. State, 98 Tex. Cr. K. 651, 267 S. W. 725.. Being unable to agi*ee with the contentions made by appellant, and finding no error in the record, the judgment will be affirmed.

On Motion for Behearing.

HAWKINS, J.

Appellant objected to-the charge for omitting to instruct the jury that if appellant “had no interest in the whis-ky and it was under the control and in the-possession of Cortinas” appellant should be-acquitted. It is still insisted that such an instruction should have been given under the-holding in Bichardson v. State, 89 Tex. Ct. B. 17, 228 S. W. 1094, notwithstanding the-court told the-jury that appellant could not be convicted if they entertained a reasonable-doubt as to whether he knew the whisky was-in the car. We think the faetsi in the- present case do not permit application of the principle of law announced, in the case referred' to. Bichardson did not own the car in which-he was riding as an invited guest and had no control over its operation or of the liquor in it. In the present case the car belonged to-appellant. He was driving it when apprehended. If the liquor had been placed in the-car by Cortinas and, appellant drove the .ear-with knowledge that the liquor was in it he was transporting the liquor regardless off whether or not he had any interest in it. Being in his car with his knowledge, it was under his control in so far as transporting it was concerned. If appellant had loaned his car to Cortinas and he placed the liquor therein without appellant’s knowledge or consent, when appellant discovered that his generosity was being imposed upon by transporting liquor in the car he could not excuse himself from criminal liability when he made himself a party to knowingly furthering its unlawful use.

The record recites that appellant was present at the trial. No point was made during the trial or upon motion for new trial that he was absent during any part of the proceeding which resulted in his conviction. By a supplemental motion for rehearing in this court appellant for the first time attempts to raise the question by ex parte affidavits that he was,' on account of sickness, absent from the courtroom during the taking of some evidence, and while the case was being argued, and when the verdict was returned, and that appellant never Waived his presence nor authorized its” waiver; that he was not on bail but in the custody of the officers of the court, who were cognizant of his absence and the cause thereof. It is appellant’s contention that the judgment is absolutely void under the circumstances recited in the affidavits. We do not discuss that point. lit is sufficient to say now that this is a reviewing ‘ court only. If on account of sickness appellant was unable to be in the courtroom and the trial proceeded in his absence, objection could have been urged when that condition arose, or upon motion for new trial, and the question have been preserved and brought before us for review by proper bill of exception. The matter cannot be raised.in this court by ex parte affidavits filed here. Donohue v. State, 90 Tex. Cr. R. 541, 236 S. W. 86.

The motion for rehearing is overruled. 
      (§=5For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     