
    STAFFORD v. STATE.
    (No. 9917.)
    (Court of Criminal Appeals of Texas.
    Feb. 24, 1926.)
    1. Criminal law <&wkey;772(2).
    Failure to give statutory definition of transporting intoxicating liquor held not error in prosecution for that offense, considering instructions given.
    2. Criminal law &wkey;863(2) — Instruction that jury could assess punishment at any time within specified years, in answer to query whether jury could split year in assessing punishment, held not error.
    •Instruction, in answer to jury’s query whether they could split a year in assessing penalty, that jury might assess punishment of defendant accused of transporting intoxicating liquor at any time not less than one year nor more than five, 'held not error.
    3. Intoxicating liquors <&wkey;238(3).
    Refusal to instruct for acquittal if alleged transported liquor was nonintoxicant was not error, where evidence showed it was intoxicating.
    Appeal from District Court, Erath County ; J. B. Keith, Judge.
    Bud Stafford was convicted of transporting intoxicating liquor, and he appeals.
    Affirmed.
    Oxford & Johnson and Chandler & Chandler, all of Stephenville, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   LATTIMORE, J.

Conviction in district-court of Erath county for transporting intoxi-eating'liquor; punishment fixed at 2y2 years in the penitentiary.

There appears in the record but the testimony of two witnesses, one for the state who testified that on the occasion in question she and another party went in a car with appellant some two miles out from Stephenville. and that he carried with him a fruit jar full of whisky. She said that the other party drank part of the liquor and became intoxicated. The other witness referred to testified for the appellant, that on the afternoon of the same day he went up to appellant’s house to trade cows with him, and appellant went in his barn and got a jar and gave to witness a drink. He said that the liquor he drank was not intoxicating. He also said that the fruit jar was about half full. There is nothing in the record to identify the liquor, thus imbibed by the defense witness, with that transported by appellant on the occasion testified to by the state witness.

There are four bills of exception in the record. The first complains of the failure of the court to give the statutory definition of the offense of transporting intoxicating liquor. We perceive no error in this action of the court. The court instructed the jury as to the meaning of transportation, and told them if they believed from the evidence beyond a reasonable doubt that appellant did transport liquor capable of producing intoxication, he should be found guilty.

Bill of exceptions No. 2 complains of the fact that in response to a request of the jury -for' additional instructions the court said:

“Gentlemen of the jury, your question in substance is: Are you permitted by the law and the charge of the court in assess ng a penalty in this case to split a year, And in answer to your question, you are instricted that if you find the defendant guilty, you nay, under the law and the charge of the court, assess the punishment at any time in your discretion not less than one year, nor more than five years.”

We see no error in the action of the court in this regard.

After the evidence was closed for both sides and the charge submitted to s ppellant’s counsel, he excepted to same for its failure to instruct the jury that if the liquid ;ransported by appellant was a nonintoxic ant, or if they had a reasonable doubt as to this, he should be acquitted. It is a well-settled rule that no duty rests upon the court 1 o give an instruction that is not called for by testimony. The only testimony' as to 'he liquor that was transported by appellant an the occasion in question was that it was intoxicating and that it made the only par;y who is shown to have taken much of it, drunk.

Appellant’s fourth bill of exceptions is substantially the same as his bill No. <¡. We see nothing in the, testimony of the defense witness which injects into this case as a defensive theory that the liquor transported by appellant was not intoxicating. The liquor produced by appellant in the afternoon, which was partaken of by appellant’s witness, is referred to as grape juice, and it is shown that the jar then produced was only half full. The liquor transported that night is referred to as whisky, and it is shown that the jar when brought out to the car by appellant was full. No one testified that both were the same kind or character of liquor.

Finding no error in the record, the judgment will be affirmed. 
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