
    GUYNES v. STATE.
    (No. 7031.)
    (Court of Criminal Appeals of Texas.
    June 7, 1922.)
    Intoxicating liquors <s=o222— Indictment charging transportation defective for failing to negative exceptions.
    An indictment for transporting intoxicating liquor charging an offense committed October 15, 1921, when Acts 36th Leg. (1919) 2d Called Scss. c. 78. was in effect, which required the state to allege that the liquor was not being transported for medicinal, mechanical, scientific, or sacramental purposes, was defective in omitting such allegation, although the indictment was returned after November 15, 1921, when Acts 37th Leg. (1921) 1st Called Sess. c. 61 (Vernon’s Ann. Pen. Code Supp. 1922, art. 588%.et seq.), dispensing with the requirement of such allegation, became effective.
    Appeal from District Court, Robertson County; W. C. Davis, Judge.
    E. R. Guynes was convicted of transporting intoxicating liquor, and he appeals.
    Reversed, and prosecution ordered dismissed.
    J. L. Goodman, of Franklin, and Robert M. Lyles, of Cameron, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction is for transportation of intoxicating liquor, with punishment assessed at two years’ confinement in the penitentiary.

The indictment contained five counts charging in various -ways a violation of the provisions of the liquor law. The fourth count only was submitted to the jury, and charges:

“That on or about the 15th day of October, A. D. 1921, in the county and state aforesaid, and anterior to the presentment of this indictment, E. R. Guynes did then and there unlawfully transport spirituous, vinous, and intoxicating liquors capable of producing intoxication.”

A timely motion in arrest of judgment was filed urging that the count upon which conviction was obtained was defective because it failed to negative the exceptions which were a part of and descriptive of the offense attempted to be charged under the law in force at the date of the alleged commission. The motion should have been sustained.

The amendatory act of the Thirty-Seventh Legislature (First and Second Galled Sessions, p. 233 [Vernon’s Ann. Pen. Code Supp. 1922, art. 588¼ et seq.]), relieving the state of the necessity of alleging that the liquor was not being transported for medicinal, mechanical, scientific, or sacramental purposes did not become effective until November 15, 1921. The indictment was returned after the amendment went into effect, but it charged an offense to have been committed at a time when the old law (chapter 78, Second Galled Session Thirty-Sixth Legislature) was still in operation, and under which the exceptions were required to be negatived. Reeves v. State, 88 Tex. Cr. R. 444, 227 S. W. 668; Robert v. State (Tex. Cr. App.) 234 S. W. 89. We mention incidentally that all the evidence shows that the transaction complained of occurred on October 15, 1921.

The judgment of the trial court must be reversed, and the prosecution under the present indictment ordered dismissed. ' 
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