
    CURRIE v. STATE.
    (No. 8731.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1925.
    Rehearing Denied Feb. 3, 1926.)
    1. Criminal law <&wkey;655(5) — Interrupting argument of defendant’s counsel, and calling latter’s attention to fact that charge contained law governing jury, held proper.
    In prosecution for transporting liquor, interruption by court of counsel’s argument that what was not reason was not law, and that it was not the law that accused would be guilty of felony if he merely transported a pint of whisky for two or three miles along the road, and calling .counsel’s' attention to the fact that the charge contained the law governing the jury, was not error.
    2. Intoxicating liquors <&wkey;l38 — Accused was guilty of transporting liquor, where he, while driving car with guests, drank with them from bottle of whisky.
    Accused was guilty of transporting liquor, where he, while driving car with guests, drank with them from bottle of whisky, during the course of a short journey, whether he or one of his guests produced the whisky; ownership being immaterial.
    3. Criminal law <@=»772(2) — Failure of charge to define “transport” and refusal to give requested charge defining such word held not ground for reversal.
    In prosecution for transporting liquor, based upon accused’s act in drinking with guests from bottle of whisky, while driving his automobile, and during the course of a short journey, failure of charge to define the word “transport” within the liquor law, and refusal to give a requested charge defining such word as meaning “the conveyance from one place; locality or country to another” held not ground for reversal.
    4. Criminal law <&wkey;627i/2 — State not usi'ng written statement it obtained from its witness was not required to deliver it to accused’s counsel for his inspection.
    State not using written statement it ob-. tained from its witness was not required to deliver it to accused’s counsel for his inspection.
    5. Witnesses <&wkey;350 — Exclusion of question whether witness had been in some sort of trouble, whether he had not been in jail or some kind of a proposition, held proper.
    In liquor prosecution, exclusion of question asking witness for state whether he had not been in some sort of trouble, whether he had not been in jail on some kind of a proposition, held proper.
    6. Witnesses <&wkey;268 (I)— Exclusion of question whether it was not true state witness was not naturalized citizen of United States held proper.
    In prosecution for transporting intoxicating liquor, state’s objection to the question whether it was not true that witness was not a naturalized citizen of the United States held properly sustained, in absence of showing inquiry was expected to. lead to any matter of benefit to accused.
    Morrow, P. J., dissenting.
    On Motion for Rehearing.
    7. Indictment and information <©=*11 (2) — Nullity of indictment could not be predicated upon failure of record to show that special term of district court at which indictment was returned was legally called.
    Nullity of indictment could not be predicated upon failure of record to show that special term of district court at which indictment was returned was legally called.
    8. Criminal law &wkey;>507(l) — Joint transporters of intoxicating liquor are not accomplices under liquor law.
    Joint transporters of intoxicating liquor are not accomplices under liquor law.
    Appeal from District Court, Howard County; W. P. Leslie, Judge.
    Oat Currie was convicted’of transporting intoxicating liquors, and be appeals.
    Affirmed.
    John B. Howard, of El Paso, for appellant.
    Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for tbe State.
   LATTIMORE, J.

Appellant was convicted in tbe district court of Howard county of transporting intoxicating liquor, and bis punishment fixed at one year in tbe penitentiary.

There are six bills of exception. Tbe first was to tbe action of tbe court below in stopping counsel for appellant in bis argument, and admonishing him that tbe law of tbe ease was contained in tbe charge of the court, and should be so understood by tbe jury. It appears that defense counsel was attacking tbe law in bis argument to the jury, and was telling them that tbe Legislature which enacted tbe law did not contain any good lawyers, as tbe best lawyers could not go to tbe Legislature, could not afford it; that be was'arguing that what was not reason was not law; and that it was not reasonable, and therefore not tbe law, that appellant would be guilty of a felony if be merely transported a pint of whisky for two or three miles along tbe road. It was entirely within tbe province of tbe trial judge to stop such argument and call counsel’s attention to tbe fact that tbe charge contained tbe law which would govern tbe jury.

The second bill complains of tbe failure of tbe charge to define tbe word “transport,” and also tbe refusal to give special charge defining said word as meaning “tbe conveyance from one place, locality, or country to another.” There is nothing in tbe complaint. Tbe state witness swore positively that upon invitation.he took a ride of several miles with appellant Dockery et al. on tbe day of tbe alleged occurrence, and that, while in tbe car, appellant, who was driving tbe car, produced from bis pocket a bottle of whisky from which they all took a drink; that about a half mile farther they took another drink from tbe same bottle. This was clearly transportation such as is forbidden by tbe statute. Dockery, for tbe defense, swore that said party went riding and appellant drove tbe car, and that, as they proceeded, tbe state witness produced a bottle of whisky, and they all took a drink out of it, and thereafter took one or more drinks while proceeding on their journey to tbe place to which they bad started. This also plainly made a case of transportation. Appellant’s guilt did not depend in the least on bis ownership of tbe whisky. He was equally guilty whether be produced it or tbe state witness produced it with tbe knowledge of appellant, and it was thereafter carried in tbe car. Tbe definition of “transportation” asked in said special charge could have added nothing to the jury’s understanding of tbe law or its application to tbe facts of this ease. There could be no question or doubt in tbe mind of any juror as to the fact that whisky was carried by appellant in bis car from one place to’ another. Tbe statement in said special charge “from one country to another” under tbe facts of this case could have but been confusing. As said by Presiding Judge Morrow in Lee v. State, 95 Tex. Cr. R. 654, 255 S. W. 425:

“The statute does not define ‘transport.’ Under the law, it is to be given the meaning ‘understood in common language,’ taking into consideration the context and subject-matter. Penal Code, art. 10. In common language, ‘transport’ signifies the carrying or conveying 'from one place, locality, or country to another. Cyc. of Law & Proc. vol. 38, p. 946. There might arise a case where the peculiarities in the testimony might make it necessary to give the definition or at least some explanatory statement relative to what is embraced within the term ‘transporting intoxicating liquors.’ As applied to the present case, however, it would seem unnecessary.”

The Lee Case has been followed since. In Maynard v. State, 93 Tex. Cr. R. 580, 249 S. W. 473, we said:

“The Legislature has not seen fit to' attempt to define said term [meaning transportation] in its enactment forbidding the transportation of intoxicating liquor. It is made unlawful for any common carrier or individual to transport such liquor, and the facts clearly show a transportation by appellant,”

■ — and we refused to hold erroneous the action of the trial court in overruling an exception to his charge because it did not define transportation. There are no peculiar facts in the case before us such as to make it possible of injury to appellant to fail to give the special charge.

The state, having taken a written statement from one of its witnesses, could not be compelled merely because of such fact to deliver said written statement to appellant’s counsel for his inspection, the state not having used said statement in any way.

To ask a witness for the opposite party if he had not been in some sort of trouble, if he had not been in jail on some kind of proposition, is manifestly not such question as should be allowed, and there was no error in the trial court so holding.

The objection of the state to the question by appellant’s attorney to a state witness if it was not true that he was not a naturalized citizen of the United States was properly sustained. Nothing appears in the bill complaining of this action which shows that the inquiry was expected to lead to any matter of benefit to the appellant.

Bill No. 6 complains that the court declined to let appellant’s counsel argue to the jury regarding a matter to which state’s objection had been sustained.

The facts in evidence amply support the verdict, whether viewed from the standpoint of the state’s testimony or that of appellant.

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

MORROW, P. J.

(dissenting). While the witnesses Storm and Dockery and the appellant were riding in the appellant’s automobile, a bottle of whisky was exhibited from which the members of the party each took several drinks. Whether the contents of the bottle were exhausted is not made plain, though such is the inference to be drawn. According to the state’s witness Storm, the bottle of whisky was taken from the pocket of the appellant after they had proceeded a short distance. According to the witness Dockery, it was Storm who had and produced the whis-ky from his own person, and that no whisky was previously in the possession of either the appellant or Dockery.

In the charge of the court, the jury was told that, if the appellant “did knowingly transport whisky,” he should be convicted. By exception to the charge and requested special charge, the court was called upon to define the word “transport” as used in the indictment and in the charge; the definition suggested in .the special charge being “the conveyance from one place, locality, or country to another.” This definition finds sanction in Webster’s Dictionary and in the judicial decisions. See Cyc. of Law & Proc., vol. 38, p. 946. Ordinarily, the failure to define-the word “transport” would not be of importance, but it is believed that the nature of the evidence in the present case characterized it as an exception. Whether the appellant had any connection with the whisky iri question other than to drink some of it is a controverted issue. If such was his sole connection, he might not be guilty of transporting it. See Walling v. State, 94 Tex. Cr. R. 147, 250 S. W. 167. The jury was furnished no guide by which to determine the appellant’s culpability other than that which has been quoted; namely, that “he did knowingly transport it.” The circumstances detailed in evidence are not so conclusive that the appellant was carrying or conveying the whisky from one place or locality to another as to deprive him of the privilege, upon request, to have the jury informed touching the judicial interpretation of the meaning of the Legislature in using the word “transport.”

For the reason stated the judgment should be reversed and the cause remanded.

On Motion for Rehearing.

LATTIMORE, J.

Appellant for the first time apparently insists in his motion that the indictment herein was a nullity because nothing appears in the record to show that the special -term of the district court at which the indictment was returned was duly and legally called in accordance with the law. He refers to Hickox v. State, 95 Tex. Cr. R. 173, 253 S. W. 823. We find nothing in the opinion in that case which can be used as authority to support the contention now made.

The motion at some length restates the same grounds of complaint urged by appellant in the original presentation of his case. He insists that the evidence wholly fails to show a transportation of intoxicating liquor by him. The principal state witness testified that on the occasion in question he and a companion were invited by appellant to take a ride with him in a car; that they got in. and, after riding out in the country some distance, appellant produced from his pocket a bottle of whisky of which they all drank. This so clearly shows the transportation of the liquor that further argument on the point seems unnecessary. Appellant also now insists that the witnesses for the state were accomplices. The legal proposition that joint transporters of intoxicating liquor are not accomplices under our present liquor laws has heen so often discussed by the court that it is unnecessary to refer to authorities. The witnesses were not accomplices.

Appellant again insists that for the court to stop his attorney in his improper argument and tell him that the matters being discussed were not such as he might legitimately discuss before the jury, and thus reprimand him in the presence of the jury, injured appellant’s rights. We are not inclined to agree with this contention. The matter attempted to be discussed in the presence of the jury was so wholly foreign to any issue involved in the case as that we regard it entirely proper for the learned trial judge to instruct counsel to desist.

Each of the matters brought forward in appellant’s motion were considered and passed upon in our original opinion, and no new authorities are cited in the motion, and we see no reason for altering our conclusion as heretofore expressed.

Our Brother MORROW adheres to his views as expressed originally.

The motion for rehearing will be overruled. 
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