
    BLACK v. STATE.
    (No. 7780.)
    (Court of Criminal Appeals of Texas.
    Oct. 31, 1923.
    Rehearing Denied Nov. 28, 1923.)
    I.Intoxicating liquors &wkey;>!38 — Illegal “transportation” does not require a completed journey.
    To constitute unlawful “transportation” of liquor the journey need not, have been completed. ,
    jEd. Note. — For other definitions, see Words and Phrases, First and Second Series; Transport — Tr ansp ortation. ]
    2. Criminal law <&wkey;l I d9>( I) — Officer’s testimony that superior officers had not called him “on the carpet” held not serious error.
    In a prosecution for illegally transporting liquor, the officer having denied that' while standing on the running board of defendant’s car he struck defendant’s wife with his club, admission of his statement on redirect examination that none of his superior officers had “called him on the carpet” was not serious error, especially where the wife testified that she made no report to his superior officers.
    3. Intoxicating liquors <&wkey;226 — Testimony of defendant’s wife held to (render excluded proof that officer had no warrant immaterial.
    In a prosecution for illegally transporting liquor, testimony of defendant’s wife that the officer jumped on the running board of defend-' ant’s car, and, without provocation, immediately began striking her with his club, held to render immaterial the question whether he had a warrant of arrest or search warrant, and exclusion of evidence that he had neither was not error.
    4. Arrest <&wkey;68 — One attacked by officer without provocation had right to fight back.
    One upon whom an officer made an unprovoked attack had a right to fight back in defense of.herself, whether he had a warrant or not.
    <S=»For other oases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from Criminal District Court, Tar-rant County; Geo. E. Hosey, Judge.
    C. Black was convicted of unlawful transportation of intoxicating liquor, and be appeals.
    Affirmed.
    Simpson, Moore & Parker, of Fort Worth, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction is for the unlawful transportation of intoxicating liquor with a penalty of one year’s confinement in the penitentiary.

W. L. Jones was a police officer in the city of Fort Wof th. He testified that on the day of the transaction out of which this prosecution grew he saw appellant at a service ear station. He and his wife were in a Ford car which was ‘standing at the station at the time the officer first observed them. Appellant started the car, and the officer stepped in front and told him to stop. He did not heed the request, but in making the turn drove or backed into' the fence. By this time the officer had reached the car. Appellant asked permission to get the car off the fence. As soon as he backed the car free from the fence instead of stopping it he 'made another start to drive away when the officer jumped on the running board on the right side of. the car, on which side appellant’s wife was sitting. The officer was trying to get hold of a package which was on the floor in the front of the car between appellant and his wife. We gather from the record that the scuffle continued for something like a block, appellant’s wife striking the officer with a black quart bottle which he says she got out of the paper sack or package. The bottle contained whisky. Jones finally got possession of it. The stopper came out and whisky was spilled on Jones’ clothing. He" told appellant to stop a number of times, but he continued to drive and turned down an alley where he Inched the package out of the open door of the car while his wife was trying to push or knock Jones off the running board. Jones was either knocked loose from the car or lost his balance in some way just after appellant nicked, the package out, When the officer fell or jumped off the' car appellant drove on and was not arrested at that time. Jones called for another officer, and in a short time they went back through the alley and there found the package which had been kicked out by appellant. In it they found two pint bottles, one full of whisky and one partially filled, also one broken pint bottle which had contained whisky, the sack being saturated with it. Appellant did not testify. His wife denied knowledge of the presence of any whisky in the car, but admits that she got hold of the black bottle which was taken from her by the officer. She claims it was in the back part of the car and that in some way she got hold of it in the scuffle with Jones, but had no previous knowledge of its presence. According to her testimony the officer jumped on the car and made an unprovoked attack upon- her and began to beat her with a club. Other defensive evidence was to the effect that this car belonged to the service car station and that it had just been rented to appellant and'his wife, who claimed to have left their own car there to have it repaired. The inference sought to be raised was that the whisky was in the car when rented to appellant. Appellant’s wife denied having seen, him place any whisky in it, and the parties working around the station at the time denied that they had placed any in it. Upon the issues thus raised the court gave two special charges at the request of appellant, in substance that, although the jury might believe the whisky was in,the car, yet if appellant had no knowledge of its presence he could not be convicted for the transportation thereof, and the jury should acquit if they had a reasonable doubt as to such being the fact.

The evidence of the officer makes a case from the state’s standpoint very much like Lamb v. State (No. 7775) 255 S. W. 424, affirmed June 29, 1923, motion for rehearing overruled October 31, 1923. According to the testimony of the officer appellant had begun his journey at the time he was accosted. It js not necessary to bring the case within the law of illegal transportation that the journey be completed.

Appellant has briefed only two questions. The officer was repeatedly asked upon cross-examination if he had not struck appellant’s wife with his club, which' he had each time denied. Upon redirect examination he said none of his superior officers had “called him on the carpet” for beating up anybody. Appellant objected to this statement on the ground that it was an improper way to undertake to support the officer’s testimony. We do not regard the matter as of very grave importance, especially in view of the fact that appellant’s wife, although asserting that the officer had without provocation on her part beat her up with his club, said that she did not make any report of the matter to any of his superior officers.

Complaint is made because the court refused to let appellant show that officer Jones had no search warrant authorizing a search of the car and no warrant for the arrest of appellant or his wife, appellant contending .that he ought to have been permitted to make this proof showing a justification for resisting the officer. If we understand1 the evidence given by appellant’s wife, it would be immaterial whether the officer was armed with a warrant for arrest or a search warrant. If the jury had believed her statement, they would have been authorized in reaching the conclusion that the officer, without any provocation whatever, made- an attack upon Mrs. Black and immediately began to strike her with his club as soon as he got on the running board of the automobile. If this was true, it would be immaterial whether he had a warrant or did not have one. She had the right to fight back in defense of herself. ' All the facts relative' to the wife’s resistance and the act of appellant in kicking the package of whisky out of the car were a part of the transaction, and under the theory of the case presented by the defense the relevancy of whether or hot the officer was armed with a warrant 'is not apparent.

The other questions brought forward by bills of exception are not briefed, but we have examined them, and in our opinion they present no error.

The judgment is affirmed.  