
    BOOKER v. STATE.
    (No. 10265.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1926.
    Rehearing Withdrawn Jan. 5, 1927.)
    1. Criminal law <&wkey;3l5(9)— Instruction to acquit of transporting liquor, unless moving whisky from concealment constituted offense, held error as precluding consideration of transportation to place.
    Instruction to acquit of transporting intoxicating liquors, unless defendant was commencing to transport whisky to another locality when he picked up a jar of it from place of concealment and went to Ms automobile, was properly refused because precluding consideration of whether accused transported it to place of concealment.
    2. Criminal law <&wkey;>554 — Jury is not bound by defendant’s testimony.
    Jury was not bound by defendant’s testimony that he found liquor which he was charged with having transported.
    3. Criminal law <@=359 — In prosecution for transporting intoxicating liquors, evidence to show that another than defendant owned whisky held properly excluded.
    In prosecution for transporting intoxicating liquors, evidence to show that person other than defendant owned the whisky held properly excluded.
    Commissioners’ Decision.
    Appeal from District Court, Wheeler County; W. R. Ewing, Judge.
    J. D. Booker was convicted of unlawfully transporting intoxicating liquors, and he appeals.
    Affirmed.
    J. B. Clark, of Shamrock, and C. C. Small, of Wellington, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Eyles, Asst. State’s Atty., of Groesbeck, for the State.
   BAKER, J.

The appellant was convicted in the district court of Wheeler county for unlawfully transporting intoxicating liquors, ■and his punishment assessed atroné year in the penitentiary.

The facts, briefly stated, are that on the day of the alleged offense the officers discovered, near the public road at a point close to the town of Shamrock, about seven gallons of whisky in jugs and fruit jars. They immediately concealed themselves and watched same until about dusk, when the appellant and one Glenn King drove up in appellant’s car, stopped, and appellant got out and went to the place where the whisky was concealed, took up, a half-gallon jar and returned to the automobile. He had handed same over to King when the officers appeared, arrested the appellant, and seized the whisky in question. Within about five minutes thereafter, Dola Gregg and a party “by the name of Blackie or Shorty” arrived, and said “Blackie” or “Shorty” got out of the automobile and went in the direction where the whisky was concealed. It further appears that the distance from where the whisky was concealed to the car in which appellant and King were riding was about 20 feet.

The appellant defended upon the ground and so testified that on the morning of the day in question, in traveling this road, he observed a party leaving the place where the whisky was located, and that he, appellant, investigated said place and found there a jar containing some kind of liquor; that he made no effort to determine the nature of said contents, but went into the town of Shamrock; that about dark in the evening he met Glenn King in Shamrock and they decided to go back to the place where he had seen said jar for the purpose of getting something to drink; and that, upon arriving at the scene, he got out and went down to where he had seen this jar, picked it up, and carried it back to the car where King was, solely for the purpose of taking a drink, and with no intention of carrying same off with them from said place, and denied any connection therewith or further knowledge thereof.

The court charged the law relative to the transportation of intoxicating liquors, and defined the word “transport” to mean, “to convey from one place or locality to another.” The appellant excepted to the court’s charge and submitted two special charges, both of which were refused by the court. The first special charge requested a verdict of not guilty and the second requested the court to instruct the jury, in effect, that it was not unlawful for the appellant to go to the place where the whisky was concealed for the purpose of taking a drink, and that, unless they found and believed from the evidence beyond a reasonable doubt that, at the time the, appellant picked up the jar and moved off toward the car, he was then commencing to transport the whisky from the locality in which it was concealed to some other locality, to acquit him. The appellant strenously insists that the refusal of this charge was reversible error. We hardly think so and are of the opinion that the special charge, as presented, was properly refused, because if given by the court it would have precluded the jury from considering whether or not the appellant, on that morning or prior to the time when he was caught in the possession of the whisky, was guilty of transporting same to the place where it was concealed. It is true the appellant testified that he saw another party at this place, which aroused hig suspicion, and that, upon investigating, he found a jar which he supposed contained something to drink. However, the jury was not bound by his testimony and was at liberty to consider whether or not he, in fact, had transported same to that point.

In bills of exception 1, 2, 3, and 5 complaint is made to the refusal of the court to permit the appellant to show by witnesses that there was a fellow known as “Blackie” or “Shorty” in Shamrock at the time of the allegéd offense, and that he had contracted to sell to appellant’s witnesses some whisky, which, he stated, was about a mile out of Shamrock; and that, a short time after the appellant was arrested, said “Shorty” or “Blackie” and the witness Gregg drove up in a car to where the officers had arrested the appellant, and that the witness Gregg, had accompanied “Blackie” or “Shorty” to said place for the purpose of sampling some whisky which “Shorty” or “Blackie” was supposed to have, with a view of buying some from the said “Shorty” or “Blackie”; that; when they arrived there, the said “Shorty” or “Blackie” got out of the car and started in the direction of the whisky, when the officers stopped him. All of this testimony was offered by the appellant for the purpose of showing that the said “Shorty” or Blackie” was exercising control and ownership over the whisky, which, the appellant contended, would prove or tend to prove his innocence in that it would show that the whisky belonged to the said “Shorty” or “Blackie,” and not to him. This testimony was excluded upon objection of the state on the ground that it was hearsay and immaterial. The proposed testimony would only tend to show, in effect, that the said “Blackie” or “Shorty” had some guilty connection with the whisky, in question. This court has held that it was improper to admit such evidence, under circumstances of this kind, unless the state’s ease was one of circumstantial evidence, and it then must be shown that the party whom the appellant attempts to prove was the guilty agent was in a position to commit the alleged offense. This is as far as this rule has ever been extended by this court. Stone v. State, 98 Tex. Cr. R. 364, 265 S. W. 900; Bohannon v. State, 100 Tex. Cr. R. 285, 273 S. W. 262; Beckham v. State, 101 Tex. Cr. R. 487, 276 S. W. 240.

After a careful consideration of the entire record, and failing to find any reversible error therein, we are of the opinion that the judgment of the trial 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.

MORROW, P. J.

Since the filing of his motion for rehearing, appellant has filed a written application, duly verified, requesting the withdrawal of said motion. The application is granted, and it is ordered that mandate issue upon the original hearing in which the judgment of the trial court was affirmed,. 
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