
    PEREZ v. STATE.
    (No. 7474.)
    (Court of Criminal Appeals of Texas.
    Nov. 12, 1924.
    Rehearing Denied Feb. 18, 1925.)
    1. Intoxicating liquors <§=>131 — Transportation of intoxicating liquor, though not for purpose of sale, held to constitute offense.
    Proof that defendant was transporting less than one quart of intoxicating liquor held to warrant conviction of transporting liquor, notwithstanding absence of evidence that liquor was being transported for purpose of sale.
    On Motion for Rehearing.
    2. Intoxicating liquors <@==>236(20) — Evidence held to sustain conviction for unlawful transportation.
    Evidence held to sustain conviction for unlawful transportation of liquor.
    Morrow, P. J., dissenting.
    Appeal from District Court, Bastrop County ; ■ R. J. Alexander, Judge.
    Catarino Perez was convicted of transporting intoxicating liquor, and he appeals.
    Affirmed.
    C. W. Webb, of Elgin, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

By indictment, appellant was charged with transporting intoxicating liquor; also with transporting liquor containing in excess of 1 per cent, of alcohol by volume; also with possessing liquors containing in excess of 1 per cent, of alcohol by volume for the purpose of sale.

The evidence that appellant, in connection with his companion, had in his possession intoxicating liquors is sufficient, though, if we properly comprehend the statement of facts, the quantity was less than one quart. We fail to find any evidence that it was possessed for the purpose of sale or for delivery at any place or to any person; the only evidence on the subject being that it was for the purpose of drinking by appellant and his companion. .

Appellant and his companion were seen at a residence some five miles from Bastrop in possession of some liquor, but neither the kind, quantity, nor the container is described. They were afterwards seen at a restaurant in Bastrop with some whisky, and immediately after they left the restaurant there was found in the automobile in which they were riding a container with one-third of a quart of whisky in it. It is possible that from these circumstances the inference might he drawn that the jar had at some time during the evening contained a larger quantity of liquor and that it had been moved from the brickyard, the locality of which is not given, or had been moved from the residence named to Bastrop. The evidence upon this subject, however, is wholly circumstantial and of an inconclusive nature.

In the opinion of the writer, the mere possession by the appellant of less than a quart of intoxicating liquor does not warrant his conviction of the offense of transporting intoxicating liquor. He had the right to possess the liquor in question, unless it was intended for an unlawful purpose, and his handling it under the circumstances detailed in the statement of facts is not deemed sufficient to show that he was transporting it. The majority of the court, however, entertain the contrary opinion. In more detail, similar facts are discussed in the several opinions in the case of Gandy v. State (No. 7579) 268 S. W. 951, to which reference is made.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

In his motion for rehearing appellant lays great stress upon the statement in our former opinion that—

“The evidence upon this subject, however, is wholly circumstantial and of an inconclusive nature.”

It is apparent from the context that what the writer meant was that the evidence that appellant and his companion had more than, or as much as, a quart of liquor, was circumstantial and inconclusive. The different views entertained by the members of this court as reflected by the opinions in Gandy’s Case (No. 7579) 268 S. W. 951, applied also in the present case; but. the writer of the original opinion in this case never meant to leave the' impression that the evidence failed to show the transportation of less than a quart of whisky, thus meeting the views of a majority of the court.

After being seen with some liquor at a point five miles from Bastrop, appellant and his companion are next seen in the latter place. They were traveling in an automobile; Appellant was intoxicated. A witness who saw them get out of the car and go to the restaurant says one of them had something under his arm. Another witness says they brought whisky into the restaurant with them, drank of it while there, and took it with them when they left. They went direct from the restaurant to the car and were arrested before they got the car running. In it was a fruit jar then containing less than a quart of whisky. The evidence shows that they brought some quantity of whisky to Bastrop in the car, took it from the car to the restaurant, and from the latter place back to the car. The offense of transporting whisky, irrespective of the amount, is clearly made out. We do not think the opinion in West v. State, 93 Tex. Cr. R. 370, 248 S. W. 371, when the facts of that case are understood, is in conflict with our present holding.

The motion for rehearing is overruled. 
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