
    DAVIS v. STATE.
    (No. 9036.)
    (Court of Criminal Appeals of Texas.
    May 13, 1925.
    Rehearing Denied Oct. 14, 1925.)
    I.Intoxicating liquors <@=>236(20) — Evidence held to show that defendant was transporting liquor for beverage purposes. '
    In prosecution for transporting intoxicating liquor, evidence held, to show that defendant was transporting liquor for beverage purposes.
    2. Criminal law <©=>! 186(4) — Any error in charge held not harmful, where evidence showed that defendant was transporting liquor for beverage purposes.
    In prosecution for transporting intoxicating liquor, any error in charge, that if defendant transported liquor solely for medicinal purposes he would not be guilty, but that transportation would not be justified if liquor was to be used as a beverage, held, not harmful, in view of Or. Code 1911, art. 743, where evidence showed that defendant was transporting liquor for beverage purposes.
    On Motion for Rehearing.
    3. Criminal law <@=>763, 764(8) — Charge held not erroneous, as being on weight of testimony.
    Charge, that if defendant transported liquor solely for medicinal purposes he would not be guilty, but that transportation would not be justified if liquor was to be used as a beverage, held, not erroneous, as being on weight of testimony.
    @=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    M. F. Davis was convicted of transporting intoxicating liquor, and he appeals.
    Affirmed.
    A. O. Winborn and Mathis, Heidingsfelder, Teague >& Kahn, all of Houston, for appellant.
    Tom Garrard, State’s Atty., and Grover •C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the criminal district court of Harris county of transporting intoxicating liquor, and his punishment fixed at one year in the penitentiary.

There is no question raised of the fact of transportation of intoxicating liquor. Under a tarpaulin over the back seat of appellant’s car were found two sacks full of empty bottles, and underneath these two five-gallon jugs of whisky and eight pint' bottles of whisky, making in all eleven gallons of whisky in appellant’s car. Appellant took the stand as a witness in his own behalf, and said he met a fellow on the day of the alleged offense, who offered him whisky at $4 a gallon' and that he bought all he had. Appellant said:

“I wanted to get some whisky. I wanted to get some for my own use, * * * and I told Mm I would take it.”

In another place appellant said:

“I like a drink, just the same as anybody else, and I bought it from him.”

Appellant’s counsel asked him if he had been using whisky for any particular purpose, and why, to which appellant said:

“Well, I always drank whisky; for medical use, for one thing.”

On cross-examination appellant said:

“I said that I liked a drink of whisky, like most other men. I had that whisky to drink as a beverage, and I was carrying.it to my home. I had carried it in my car about 12 or 13 miles that morning, and I was carrying it home to use as a beverage, to drink when I wanted to take a drink of whisky.”

Referring to his arrest, appellant said that, when Mr. Nix asked him what he had in his car, he did not tell him he had liquor, and did not tell him that he had ever had any heart trouble. In another place appellant was asked if he was taking the whisky for beverage purposes, regardless of the heart trouble, and he said that he liked whisky, and that he had this heart trouble, and that he had always liked whisky; that he had always drunk whisky; that he drank it before he had heart trouble, and would still drink it if he did not have heart trouble, and that he did not wait until he nad an attack of heart trouble before he drank it; that he drank it whenever he wanted it. Asked if these were the reasons why he had the whisky, and why he was carrying it home, he said, “Xes, sir.” There was no pretense of transportation for any of the other purposes excepted by the statute.

In this condition of the record the learned trial judge told the jury that, if.defendant transported the liquor solely for medicinal purposes, he would not be guilty, and should be acquitted, but that, if they believed from the evidence beyond a reasonable doubt that the liquor was being transported by appellant tó be used as a beverage, and not solely for medicinal purposes, that his transportation oí same would not be justified. The only exception of any kind found in this record is taken to the charge of the court just mentioned. It is urged that, under the authority of Veasey v. State, 97 Tex. Cr. R. 299, 260 S. W. 1054, the charge was subject to the exception presented. In our opinion the facts of that case are so dissimilar from those appearing in the record before us as to render that case not an authority applicable. The proof before us seems to demonstrate beyond doubt that appellant was transporting the liquor for beverage purposes. It would be unsound to, say that a man who claimed to be transporting whisky, which he proposed to use for medicinal purposes in case he had sickness, and for beverage purposes when no one was sick, could excuse his transportation of a large quantity of whisky along a public highway. We think the charge of the cour.t correct, and the decision of the jury supported by the testimony. In any event, under Or. Code, art. 743, such charge would not be harmful.

The judgment will be affirmed.

On Motion for Rehearing.

The third paragraph of the court’s charge is as follows:

“If the defendant transported the liquors solely for medicinal purposes, he would not- be guilty, and should be acquitted; but if you find from the evidence, beyond a reasonable doubt, that the liquor was transported by the defendant to be used as a beverage, and not for medicinal purposes, then his actions in transporting the same could not be justified in law.”

We have carefully analyzed this paragraph, and that part of it which is complained of, in the light of the testimony of appellant, and do not believe it on the weight of the testimony. Appellant was transporting 11 gallons of- whisky. His statement of his purpose in its transportation is set out in our opinion. The motion of appellant is courteous and appealing, but we are unable to bring ourselves to believe the matter complained of, i. e., that the charge is on the weight of the testimony, is of such seriousness as to call for a reversal.

The motion for rehearing will be overruled.  