
    TUCKER v. STATE.
    (No. 9731.)
    (Court of Criminal Appeals of Texas.
    Feb. 10, 1926.
    Rehearing Denied April 7, 1926.)
    1. Criminal law &wkey;>806(3) — Failure to apply doctrine of reasonable doubt to affirmative defense in liquor prosecution held error.
    In prosecution for transporting intoxicating liquor in a suit case, where affirmative defense was that defendant did not know that suit case contained liquor, instruction which failed to apply doctrine of reasonable doubt to that defense held erroneous.
    2. Criminal law <&wkey;>308 — Defendant in criminal case is presumed to be innocent until his guilt is established by legal evidence.
    In a criminal case defendant is presumed to be innocent until his guilt is established by legal evidence, which presumption is as much a part of the law of the land as that on which prosecution is founded.
    Commissioners’ Decision.
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    ’ C. Tucker was convicted of the unlawful transportation of liquor, and he appeals. •
    Reversed and remanded.
    Heidingsfelder, Kahn & Branch, of Houston, for appellant.
    Horace Soule, Cr. Dist. Atty., and J. D Du Mars, Jr., Asst. Cr. Dist. Atty., both of Houston, Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The offense is unlawful transportation of liquor, and the punishment is two years in the penitentiary.

The testimony is undisputed that appellant carried two suit cases containing whisky from a train to an automobile 34 steps away, and his defense was that at the time he transported said suit cases he did not know that they contained whisky. In support of his defensive theory, the appellant testified positively that he did not' know that there was any whisky in the baggage, never had any idea or thought that Brown, the party with whom he was driving in the automobile, ■ was going up there to get whisky off of the train, and that he had no interest in any whisky, and did not go there with any intention of aiding Brown or any one else in getting whisky. He further testified ■ that, if there was any whisky on the automobile seat, he did not know anything about it; that it was not his whisky; that he did not take any whisky on the way out- there, and did not drink any whisky.

In an attempt to present appellant’s theory of the case, the learned trial judge charged the jury as follows:

“You are further instructed that', if C. Tucker transported or assisted in the. transportation of the whisky introduced in evidence without, knowledge on his part of the contents of the suit cases and hand bags, then, in so far as he is concerned, it would not be an unlawful trans-, portation, and, if he unwittingly assisted in ’the transportation without knowing the contents thereof, then the possession of the liquor was in B. B. 'Axton, and not Tucker, and no presumption of the law would arise as against the said Tucker.”

The defendant objected to the manner of' the court’s presentation of his defense, and suggested in his objections that the court should charge the jury that, if the defendant carried the suit eases from or about the train to the automobile, before he could be convicted the jury must believe beyond a reasonable doubt that he knew that they contained whisky, and if upon this point they had a reasonable doubt they should acquit the defendant. This was the only affirmative presentation of the theory of the defense, and the charge was further objected to because nowhere in the same is the reasonable doubt given in connection with such defensive theory. The question here presented was decided in accordance with the appellant’s contention in the cases of Jones v. State, 257 S. W. 895, 96 Tex. Cr. R. 332; Garcia v. State (Tex. Cr. App.) 273 S. W. 856. The principle involved in those cases is identical with that in the instant case. Also see Carrier v. State, 271 S. W. 383, 99 Tex. Cr. R. 663.

Appellant objected because the court instructed the jury that the possession of more than a quart of whisky is prima facie evidence that the whisky was for the purpose of sale, but this presumption can be met and destroyed by evidence that there was no such purpose. Appellant specially criticizes the use of the word “destroy!’ in connection above used. While not a great deal of importance is attached to this, it might be objectionable. The views of this court as to a correct charge on this statute have been fully expressed in the following cases: Stoneham v. State, 268 S. W. 156, 99 Tex. Cr. R. 54; Newton v. State, 267 S. W. 272, 98 Tex. Cr. R. 582; Caldwell v. State, 273 S. W. 608, 101 Tex. Cr. R. 75. In view of another trial, we think it proper to say that the language of the statute itself is appropriate in submitting this matter.

Por the errors above mentioned, the judgment of the trial court is reversed, and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

The state insists that in failing to couple the law of reasonable doubt with the appellant’s affirmative defense the trial court committed no error. The district attorney has prepared a motion, displaying research and; ability, in which many precedents are cited and discussed, including Powell v. State, 13 S. W. 599, 28 Tex. App. 398; Johnson v. State, 15 S. W. 647, 29 Tex. App. 150. Touching these cases, and others following them, the writer has expressed his views in some detail in the case of Regittano v. State, 257 S. W. 908, 96 Tex. Cr. R. 477. As stated in that ease, the apparent lack of harmony in Powell’s Case and Johnson’s Case, supra, both of which were written by the same judge, is reviewed at some length, and reference made to many subsequent decisions of this court. The Reg-ittano Case, while first reversed, was ultimately affirmed. The affirmance, however, was based upon the failure of the bill of exceptions to show that proper objections had been made to the omission in the charge. Prom the original opinion in that case, we take the following quotation:

“The law requiring a charge on the presumption of innocence and reasonable doubt is generally satisfied when the doctrine is applied by a charge referring to the whole case, that is, referring to the general issue of guilty or not guilty. * * It has been held that it is not required that it shall be charged in every case with regard to each affirmative independent defense. * * * It is believed, however, that where, as in the instant case, the defensive theory is an affirmative one, that is, where the connection of the accused with the homicide is conceded and justified by affirmative testimony given by the accused, when the matter is properly presented in the trial court, there should be embodied in the charge submitting his defense the information to the jury that if they believe the affirmative defensive facts or have a reasonable doubt of their truth, an acquittal should result.”

■From the opinion on motion for rehearing the following quotation is taken:

“No exception having been taken, we need not further discuss the proposition that appellant’s rights were fully protected by the general charge on reasonable doubt and the other references thereto, in said charge above mentioned.”

In the present case, it is the sufficiency of the charge as against proper exception that is at issue. According to the state’s testimony, upon the stopping of a train at a station, certain suit cases were put off of the train. Appellant and others who were near by picked up the suit cases and carried them some 30 steps to an automobile. Appellant testified that he and some ladies became the guests of one Brown, who had an automobile in which they were taken out for a ride. During the ride they came to the station of Huffman, Brown stating that he was going to meet a traveling man and take him to Humble. The automobile stopped at Huffman; the train arrived; a man got off and said to the parties in the automobile, “Come over here and help us bring the baggage over.” Responding to this request, and with no knowledge of the contents of the package, he assisted in conveying it to the automobile. It was later discovered that there was intoxicating liquor in the suit cases. Appellant declared in his testimony that he had no interest in the whisky, and no knowledge or intimation that the suit cases contained whisky.

It is clear that the appellant was connected with the criminal transaction. He admitted it, but gave affirmative testimony explaining it, which, if true, might have been regarded by the jury as sufficient to exculpate him. 1-Ie, like other persons accused of crime, was within the purview of the statute which declares that, in a criminal case, the defendant is presumed to be innocent until his guilt is established by legal evidence. This presumption is as much a part of the law of the land as that upon which the prosecution is founded. The jury in the present case knew that the appellant had carried the liquor. Upon the appellant’s exception and request, they should have been specifically told that if he carried it in ignorance of its presence, or if they entertained a reasonable doubt as to his knowledge of its presence, he should be acquitted. The facts of the ease, in our judgment, bring it within the rule in Johnson’s Case, supra; also Regittano’s Case, supra; and other eases therein cited, and cited in the original opinion.

The motion for rehearing is overruled. 
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