
    DAVIS v. STATE.
    (No. 7686.)
    (Court of Criminal Appeals of Texas.
    May 2, 1923.)
    Intoxicating liquors <§=>222 — Indictment charging transportation of liquor held not to sufficiently negative statutory exceptions.
    An indictment for transporting liquor charging an offense under Acts 36th Leg. (1919) 2d Called Sess. c. 78, § 31, which, in attempting to negative the exceptions contained in that statute, alleged that the transportation was “not for medicinal, mechanical, scientific, and sacramental purposes,” held by the use of the word “and” to require defendant to show that the transportation was for all the excepted purposes, and as such insufficient.
    Appeal from District Court, Lamar County; Ben H. Denton, Judge.
    P. T. Davis was convicted of transporting intoxicating liquor and he appeals.
    Reversed and prosecution.ordered dismissed.
    Sturgeon & Sturgeon, of Paris, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction is for the transportation of intoxicating liquor. Punishment assessed is two years in the penitentiary.

The indictment was returned in October, 1921, and alleged the offense to have been committed on October 9, 1921. This was before the amendment to the “Dean Liquor Law,” passed by the Thirty-seventh Legislature (page 233, Acts 1st C. S. [Vernon’s Ann. Pen. Code Supp. 1922, art. 588¼ et seq.]), became effective. To charge an offense under the then existing law (chapter 78, § 31, Acts 2d C. S., 36th Leg.) it was necessary to negative the exceptions in the indictment. The pleader in the present case undertook to do. so, and alleged that appellant transported intoxicating liquor “not for medicinal, mechanical, scientific, and sacramental purposes.” The indictment is attacked on the ground that using the conjunction “and” forces appellant, before his defense would be complete, to show the transportation for all of the excepted purposes, whereas the transportation for any one of them is a complete defense under the statute. Appellant’s contention has been sustained in McNeil v. State (Tex. Or. App.) 241 S. W. 1022, and O’Neal v. State (Tex. Cr. App.) 242 S. W. 238.

Appellant raises the question that the .witness Parker is an accomplice, and that by his testimony alone does the state under-, take to connect appellant with the illegal transportation of whisky. On account of the necessary disposition of the case because of the defective indictment we do not discuss the other point mentioned. If there should be further prosecution, and the evidence on another trial raises the issue, it will doubtless be properly cared for.

The judgment must be reversed, and the prosecution ordered dismissed under the present indictment  