
    BURGE v. STATE.
    (No. 8048.)
    (Court of Criminal Appeals of Texas.
    Nov. 12, 1924.)
    1. Criminal law <®=>l 092(I) — Bill of exceptions, not authenticated by trial judge, cannot be considered.
    Bill of exceptions, not authenticated by trial judge, cannot be considered.
    2. intoxicating liquors <@=>236(20) — Evidence held to sustain conviction for transportation.
    Evidence held) to sustain conviction for transportation of intoxicating liquors.
    Morrow, P. J., dissenting.
    Appeal from District Court, Hardin County; J. L. Manry, Judge.
    W. Burge was convicted of transporting intoxicating liquor, and he appeals.
    Affirmed.
    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 district court of Hardin county of transporting intoxicating liquor, and his punishment fixed at one year in the penitentiary.

There appears but one bill of exceptions in the record which is not authenticated by the learned trial judge, and for that reason cannot be considered. The indictment is in regular form, and the charge presents the law, and the testimony seems ample to support the conviction. Officers followed a Ford car in which appellant was traveling on a public road, in which car, upon investigation, was found whisky. Appellant’s defense was that he was riding along the road and observed a bottle lying by the side of the road and picked it up, and thought it was empty. The jury seem to have resolved the facts against appellant and we deem them sufficient to support the conclusion of guilt.

No error appearing, an affirmance is ordered.

MORROW, P. J. (dissenting).

I am unable to concur in the affirmance of this case, for the reason that, in my judgment the evidence does not prove the offense of transporting-intoxicating liquor. The single fact upon which the conviction, rests is that the appellant had in his possession a quart bottle containing some whisky. It is lawful to possess whisky unless it be for the purpose of sale, and the law implies no inference of an unlawful possession where the quantity is not more than a quart.

The views of the writer are expressed in more detail in the dissenting opinion in the case of Gandy v. State (No. 7579; Tex. Cr. App.) 268 S. W. 951, to which reference is made. 
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