
    KNOTT v. STATE.
    (No. 8975.)
    (Court of Criminal Appeals of Texas.
    Feb. 11, 1925.
    Rehearing Denied Tune 17, 1925.)
    I.Criminal law <®=>829(l) — Refusal of instruction incorporated in main charge not error.
    Refusal of requested instruction, which was incorporated in main charge, held not error.
    2. Intoxicating liquors <©=>13! — Transportation need not be for purpose of sale.
    To support conviction for transportation of intoxicating liquor, proof that transportation was for purpose of sale held not necessary.
    3. Intoxicating liquors <©=3239(5) — Refusal to instruct jury not to be prejudiced! by the amount of liquor introduced in evidence not error.
    In prosecution for transportation of liquor, where the 240 quarts found in accused’s car were introduced in evidence, refusal to instruct jury that they should not be prejudiced against accused because of amount of liquor transported held not error.
    4. Jury <©=>65 — Refurnishing wheel with names of jurors held in substantial compliance with statute.
    Where jury wheel had been illegally filled so as to require refilling, new wheel, filled in compliance with Rev. St. arts. 5151-5158, by use of same tax rolls of tax assessor’s office originally used supplemented with poll tax rolls for same year, checking from one to other in order to leave name of no one out of wheel who might be qualified juror, held in substantial compliance with articles 5151-5153.
    5. Jury <§=^65 — Failure to get authority to deputize representative from district clerk’s office in filling jury wheel held not to make filling unlawful.
    Where representative from district clerk’s ^office at time of filling jury wheel had been deputized by district clerk and was acting as deputy de facto, failure -to secure authorization for her appointment by commissioner’s court held not grounds for holding that panel of jurors had not been selected as required by Rev. St. arts. 5151-5158.
    On Motion for Rehearing.
    6. Intoxicating liquors <©=>13, 132 — Statute forbidding transportation of intoxicating liquor not incompatible with Volstead. Act and Eighteenth Amendment.
    Vernon’s Ann. Pen. Code Supp. 1922, art. 588%a, prohibiting transportation of intoxicating liquor, held not void because of incompatibility with Volstead Act (U. S. Comp. St. Ann. Supp. 1923, § 10138¾ et seq.), and with Const. U. S. Amend. 18.
    7. Intoxicating liquors <©=>13 — Statute forbidding transportation of liquor, held authorized under federal Constitution, irrespective of state Constitution.
    Vernon’s Ann. Pen. Code Supp. 1922, art. SSS1^, prohibiting transportation of intoxicating liquor, held authorized under Const. U. S. Amend. 18, irrespective of whether Const. Tex. art. 16, § 20, as amended, purporting to grant such power, was valid and constitutional.
    Appeal from District Court, Jefferson County; Geo. C. O’Brien, Judge.
    I-I. G. Knott was convicted of the transportation of intoxicating liquors, and he appeals.
    Affirmed.
    
      Howth, Adams, O’Fiel & Hart, of Beaumont, for appellant.
    Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for the transportation of intoxicating liquor; punishment fixed at three years in the penitentiary.

The indictment charged appellant Leslie Fairchild, Wanda Knott, and Katherine Fair-child jointly with transporting intoxicating liquor. Officers testified that they were watching a Packard automobile, and saw it drive-to a certain warehouse or garage outside the city of Beaumont; that they Vai-ted until the car came -back, stopped it, and found packed in the back of the car 240 quarts of whisky. The whisky -had some sort of covering over it. • In the car a-t the the time were appellant and the other three parties named in the indictment. Appellant claimed to have come from Dallas where he resided to Beaumont for the purpose of looking after an airplane belonging to him which was . then supposed to be in Beaumont in charge of other parties; that his wife and Mr. and Mrs. Fairchild accompanied him to Beaumont; that after reaching that place he met a party from whom he purchased the liquor in question; that none of the other parties knew the whisky was*in the car; that he told his wife, when interrogated about what was covered up in the back of the car, that it was airplane parts he was taking back to Dallas. The trial resulted in the conviction of appellant alone, his three codeiendants being acquitted.

Bills of exception Nos. 1, 3, 4, 5, 6, 9, 10, 12, and 13 are to the refusal of certain special charges. None of them relate to any defensive issue in so far as appellant is concerned, but were favorable to Fairchild and his wife and Mrs. Knott. All of them having been acquitted these bills seem to have no place in the record.

What is characterized in the transcript as bill of exception No. 2 is a special charge requested by appellant and given by the court.

There is no merit in the contention that our statute under which the conviction occurred is in conflict with the Eighteenth Amendment to the Constitution of the United States, and to the federal law known as the Volstead Act (U. S. Comp. St. Ann. Supp. 1923, § 10138¼ et seq.). In view of the decisions of the Supreme Court of the United States holding to the contrary and the many opinions of -this court to the same effect, it would seem -that this point as a question of law is settled. The announcement contrary to the contention was first made by this court in Ex parte Gilmore, 88 Tex. Cr. R. 529, 228 S. W. 199. In “Shepard’s Southwestern Citations of Texas Cases,” 34 are given which follow and reaffirm Gilmore’s Case. Some of the decisions from the Supreme Court of the United States are collated in the opinion from this court in Goforth v. State, 269 S. W. 98, delivered January 21, 1925.

The court was not called upon to give the requested charge, refusal of which is complained of in bill of exceptions number 8. This identical instruction was incorporated in the main charge.

A special charge was requested to the effect thaf mere transportation was not unlawful, and that before such transportation would be an offense it must be shown that it was -being transported for the purpose of sale. This is not the law.- McNeil v. State, 93 Tex. Cr. R. 259, 247 S. W. 536; Finley v. State, 96 Tex. Cr. R. 542, 258 S. W. 1062; Mayfield v. State, 92 Tex. Cr. R. 532, 244 S. W. 819. Many authorities are collated in the case last referred to.

'The 240 quarts of liquor found in appellant’s car were introduced in evidence. He sought to have the court instruct the jury that the exhibition of the liquor should not in any manner influence their verdict or prejudice them against appellant. If we understand his position, it seems to be that the jury might not have assessed the punishment at more than -the minimum if the large quantity of liquor had not been placed before them. The authorities cited by him do not support any such proposition as here advanced, and we know of none sustaining it. The state was in no way responsible for the wholesale transportation inaugurated by appellant, and if the quantity of liquor had anything to do with the penalty assessed, the blame would seem to rest upon appellant alone.

Appellant filed a motion to quash the panel of jurors, upon the ground that they had not been selected at the time and in the manner provided in chapter 5, title 75, of the Revised Civil Statutes. Upon hearing evidence relative to such matter the following facts were developed: After the decision of this court in the case of Atwood v. State, 96 Tex. Cr. R. 249, 257 S. W. 563, Hon. Geo. C. O’Brien, Judge of the District Court for the Fifty-Ninth judicial district, held an inquiry with reference to -the manner in which the jury wheel for Jefferson county had been filled. After such investigation he had entered upon the minutes of his court the following findings and order:

“Whereas, between the 1st and 15th days of August, A. D. 1923, the tax collector, tax assessor, sheriff, county clerk, district clerk, and some of their respective deputies, did, under articles 5151, 5152, and 5153 of the Revised Civil Statutes of the State of Texas, from the tax lists in the tax assessor’s office for the current year,- select jurors and place their names on separate cards in the wheel provided for that purpose, and from which to draw the juries for, the ensuing year, but
“Whereas, in mating such selections of jurors, said officers withheld from said wheel and did not place therein the names of all jurors, such as lawyers, doctors, firemen, and others exempt by law, by which act in so withholding said names and not placing the name of said exempted jurors in the said wheel the Court of Criminal Appeals of Texas have, in a recent opinion, in the case of Atwood v. State of Texas, held that it is unlawful, and in .violation of the statute for such officers in filling said wheel 1o so exercise their discretion of not putting the names of such exempt jurors in the wheel, as was done in this instance, thereby, in said decision, declaring all jurymen in said wheel illegal, and,
“Whereas, E. Kirby Smith, district clerk, and his deputies, J. C. Safley and Joe Cottam, have appeared before me in open .court, and after having been duly sworn according to law, stated as a fact that, in the filling of said wheel with the names of said jurors as aforesaid, those so filling said wheel with said names failed and refused to put the names of city firemen, jurors over 60 years old, and professional and other men exempted by law in said wheel when they filled the same on or about August, 1923, and
“Whereas it therefore appears to this court that under the said recent opinion rendered in the said Atwood Case, that the said wheel was illegally filled, and that all panels of jurors drawn therefrom are and will he illegal, subject to exceptions and objections by all parties to suits hereafter coming on for trial.
“Now therefore, in order to eliminate any further controversies with reference to the legality of jurors drawn from said wheel, said county, in compliance with the findings of said Court of Criminal Appeals, and with the law, hereby declared the said jury wheel illegally filled, and the contents therein, as illegal, and it is ordered that the clerk of the district court be and he is hereby directed to empty said wheel, and that the said officers are required to proceed to select the names of jurors to serve the remaining portion of this -year, in the manner provided by said articles 5151, 5152, and 5153, of the Revised Civil Statutes, and that said selection and proceeding be had on or about the 7th day of February, A. D. 1924.”

This order was signed by Judge O’Brien and concurred in by Judge E. A. McDowell of the Sixtieth judicial district, and Judge D. P. Wheat, judge of the county court of Jefferson county at law. In compliance with the order therein made, a now jury wheel for Jefferson county was filled by the officers stipulated in article 5151, R. C. S. They used the tax rolls of the tax assessor’s office for the .year 1922, this1 being the roll which had been used in filling the wheel originally. They supplemented the tax rolls from the tax assessor’s office with the poll tax rolls for the same year, checking from one to the other in an effort to leave the name of no one out of the wheel who might be known to be a qualified juror. Some names not upon the tax rolls from the tax assessor’s office which were found to be upon the poll tax rolls were also placed in the jury wheel, if it was known to the officers that they were qualified jurors. We do not undertake to set out here the testimony taken upon the hearing of this matter, but therefrom we conclude it shows a .substantial compliance with articles 5151, 5152, and 5153, R. O. S., and that an earnest effort was made by the officers under the direction of the court to comply in every respect with the opinion of this court in Atwood v. State, supra. We quote a portion of article 5158, R. O. S., which appears applicable to the matter now under consideration. It roads as follows:

“If, for any reason, the wheel containing the names of jurors be lost or destroyed, with the Contents thereof, or if all the cards in said wheel be drawn out, such wheel shall immediately be refurnished, and cards bearing the names of jurors shall he placed therein immediately,' in accordance with articles 5151, 5152, and 5153. * * * ”

The contents of the wheel which was filled between the 1st and 15th of August was destroyed by order of the court after judicially ascertaining that the same had been illegally filled. The filling of the wheel again as ordered by the court appears to us a substantial compliance with the article of the statute just quoted.

We think there is no merit in the contention that Miss Burdette, a representative from the district clerk’s office present at the time the wheel was filled in February, was not a deputy district clerk. It appears from the testimony of the district clerk that Miss Burdette had been deputized by him and was acting as a deputy, but that he had neglected to get authority from the commissioner’s court authorizing such appointment. She was a deputy de facto, and the fact that her appointment had not been authorized by the commissioner’s court would not, in our opinion, call for a holding that the jury wheel was not filled in compliance with the statute.

The judgment is affirmed.

On Motion for Rehearing.

MORROW, P. j.

The elaborate argument in the motion for rehearing, to the point that article 588%a of the Penal Code, as contained in the Complete Statutes of Texas, 1920, is void-because of its incompatibility with the United States statute known as the Volstead Act, and with the Eighteenth Amendment to the United' States Constitution, relates to a matter which is not open to debate, inasmuch as it has beeu settled against the contention of the appellant by the decisions of the Supreme Court of the United States, as illustrated by State of Maine v. Gauthier, 121 Me. 522, 118 A. 380, 26 A. L. R. 652; Chandler v. State of Texas, 260 U. S. 70S, 43 S. Ct. 247, 67 L. Ed. 474. Texas cases to this effect are collated in the citations in Ex parte Gilmore, 88 Tex. Cr. R. 529, 228 S. W. 199, which citations are found in Shepard’s South-western Reporter Citations, p. 1500. Many other cases are found jn the notes in 26 A. L. R. 601. The identical question was decided against the appellant’s contention by the Supreme Court of the United States (see U. S. S. Ct. decisions cited in Goforth’s Case [Tex. Cr. App.] 269 S. W. 98).

The attack upon the validity of the article mentioned upon the ground that, in adopting the amendment to section 20, art. 16, of the Constitution of this state, the procedure designated by the Constitution was not followed, is, in substance, the same as was reflected by the record in the ease of Manos v. State, 263 S. W. 310, in which this court expressed the opinion adverse to the appellant. In the present case, however, no facts are found showing the manner of publishing notice of the election on the amendment. In the Manos Case, supra, it was said:

“If in the conclusions stated we should he mistaken, the clause of the statute forbidding the possession of intoxicating liquor for the purpose of sale * * * would nevertheless find support in the Eighteenth Amendment to the Constitution of the United States.”

So, likewise, to transportation. In that .amendment the manufacture, transportation, and sale of intoxicating liquors for beverage purposes were forbidden, and “Congress and the several states shall have concurrent power to enforce this article by appropriate legislation.” No doubt is entertained by this court of the legislative power to enact the statute upon which this prosecution is founded, independent of section 20, art.. 16, of the Constitution of this state. Whether that clause, as it now appears in the Constitution, was legally or illegally adopted, the power to enact the law would come from the paramount law of the land —the Constitution of the United States, as embraced in the Eighteenth Amendment. Upon the subject, see Rhode Island v. Palmer, 253 U. S. 350, 40 S. Ct. 486, 588, 64 L. Ed. 946; Ex parte Gilmore, 8S Tex. Cr. R. 531, 228 S. W. 199; Chandler v. State, 260 U. S. 708, 43 S. Ct. 247, 67 L. Ed. 474; also, citation of authorities in notes in 26 A. L. R. pages 652 and 673.

We find no occasion to review the other points raised in the motion, as they have been fully considered,' and in our judgment were properly disposed of in the opinion on the original hearing.

The motion for rehearing is overruled. 
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