
    GOBLE v. STATE.
    (No. 8584.)
    (Court of Criminal Appeals of Texas.
    Jan. 7, 1925.)
    I. Intoxicating liquors &wkey;>202 — Indictment-need not allege transportation of liquor was for purpose of sale.
    Indictment- for transporting intoxicating liquor need not allege transportation in question was for purpose of sale.
    2;. Intoxicating liquors <&wkey;227 — Evidence of sheriff that accused was tfrunk when arrested admissible.
    In prosecution for transporting intoxicating liquor, where accused admitted having been drinking, testimony of sheriff that he was drunk, when found in possession of liquor, held admissible.
    3. Intoxicating liquors &wkey;>l3l — Charges that burden is on state to prove liquor transported! for purpose of sale properly refused.
    Charges that burden of proof is on state to show that liquor was being transported for purpose of sale held properly refused.
    4. Intoxicating liquors <&wkey;167 — Refusal _ to charge that accused himself must be driving, proper, in face of admission proving him a principal in undertaking.
    Refusal to charge that accused is not guilty of transporting intoxicating liquors, unless driving car himself, properly refused, in face of his admission of agreement with companion to transport liquor in his car, and presence in car during undertaking.
    5. Criminal law &wkey;>787(l) — Charge that, while accused may testify, failure to do so cannot be counted against him, not improper.
    Charge that, while accused is permitted to testify, failure to do so cannot be counted against him, held not improper.
    Appeal from District Court, Parker County; E. O. McKinsey, Judge.
    B. M. Goble was convicted of transporting intoxicating liquor, and be appeals.
    Affirmed.
    Preston Martin, of Weatherford, for appellant.
    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 Parker county of ■ transporting intoxicating liquor, and his punishment fixed at one year in the penitentiary.

There appears no dispute possible under the facts but that a large quantity of whisky was being transported in appellant’s car from some point in Palo Pinto county to the city of Port Worth. After his arrest and proper warning, appellant made a written statement, which was introduced in evidence against him on his trial, in which he said that another man came to his home in Palo Pinto county and offered him $50 to take him and his whisky from Thurber to Port Worth. They drove as far as Weatherford, where a stop was made to get the brake of the car fixed. Appellant said that while he was having the brake fixed the other party left the car and the appellant picked him up on the square. About a mile east of Weatherford the car turned over, and appellant said that the other party got out of the car and took two jugs of the liquor and left, saying he would be back in a minute, but that he never did come back.

Appellant moved to quash the indictment upon the ground that it did not allege that the transportation of the liquor in question was for purposes of sale. The question has been before us and decided adversely to this contention. Land v. State, 93 Tex. Cr. R. 470, 247 S. W. 554; Crowley v. State, 92 Tex. Cr. R. 103, 242 S. W. 472; Scott v. State, 97 Tex. Cr. R. 105, 260 S. W. 864.

There is also a bill of exceptions to the testimony of the sheriff that when he discovered appellant at the place where the car was turned over he was drunk. We think the testimony was admissible. In appellant’s own written statement he said that when he and his companion reached Weatherford they were drinking. -We do not believe it erroneous to give in evidence the condition of appellant at the time he was found in possession of the liquor in question.-

Appellant asked two special charges, one that the burden was on the state to show that the liquor was being transported for purposes of sale, and the other that the jury could not convict unless they believed the evidence showed the liquor was being transported for such purpose. Both Charges were properly refused. Scott v. State, 97 Tex. Cr. R. 105, 260 S. W. 864.

Appellant asked a special charge instructing the jury that if they believed that one Archie Armstrong was driving appellant’s car through Parker county, containing the whisky in question, and that this accused was not driving said car, they should find him not guilty. The charge was properly refused for several reasons. There seems no question from the statement of appellant offered in evidence but that he drove the car himself while in the city of Weather-ford, and there is no evidence showing which of the parties drove it as they entered said city. The mere fact that in said statement it is made to appear that Armstrong was driving the car at the point east of said city where it turned over would not exculpate appellant or entitle him to an acquittal. Under his own admission his agreement was to bring the whisky and Armstrong in his car from Thurber to Fort Worth for $50. He was present and engaged in the prosecution of this transportation, according to that agreement, at the time the car turned over in Parker county. Having fully agreed with Armstrong to transport the liquor in his car, and being engaged with Armstrong in the prosecution of this criminal enterprise at'the time, would clearly make him a principal and prevent the special charge mentioned from containing a correct proposition of the law.

Bill of exceptions No. 7 presents the objections to the court’s main charge each of which has been examined by us and none of which is believed to present any valid ground of objection. Complaint is also made that the court instructed the jury that while appellant was permitted to take the stand and testify, he was not required to do so, and that his failure to testify could not be considered by the jury as any fact or circumstance against him. We do not believe this to present any error.

Appellant received the lowest penalty at the hands of the jury, and, the evidence amply justifying the conclusion of guilt, the judgment will be affirmed. 
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