
    MORGAN v. STATE.
    (No. 8644.)
    (Court of Criminal Appeals of Texas.
    March 11, 1925.
    Rehearing Denied April 15, 1925.)
    On Motion for Rehearing.
    1. Intoxicating liquors <&wkey;l38 — Transportation, for accommodation of friend, of liquor not to be used for medicinal purposes, constitutes unlawful transportation.
    Transportation, for accommodation of friend, of liquor not to be used for medicinal purposes, constitutes unlawful transportation of intoxicating liquors.
    2. Criminal law &wkey;>l056(1) — Failure to except to refusal to give special charge precludes consideration of charge by Court of Criminal Appeals.
    Failure to except to refusal to give special charge precludes consideration of charge by Court of Criminal Appeals.
    Appeal from District Court, Limestone County; J. R. Bell, Judge.
    D. E. Morgan was convicted of transporting intoxicating liquor, and he appeals.
    Affirmed.
    O. F. Watkins, of Mexia, 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 Limestone county of transporting intoxicating liquor, and his punishment fixed at one year in the penitentiary.

Appellant was a service car driver, running in and out of Mexia, Tex., and on the occasion in question drove his car at night several miles in the country to a negro supper or festival. Officers of the county conducted a raid that night, and arrested appellant and his companions as they approached said place. Appellant was driving the car, and in the front seat with him was a negro woman and a half gallon of whisky. In the back seat of the car was another white man, with a negro woman sitting by him, and they also had another half gallon of whisky. It is undisputed that, as the party left the town on their way to the festival, appellant got out of tlie car at a certain point and procured tlie whisky, which he brought back and placed in the car. On the trial he insisted that he bought it with money contributed largely by the other white man in the ear, and that he owned only a quart of the whisky, and that the remainder belonged to the other man. He also took the position that the quart purchased by him was purchased and was being transported for medicinal purposes; that is, for the use of his wife. This theory was submitted to the jury in appropriate language in the charge of the court.

Appellant complains of the refusal of his special charge No. 2, in substance, asking that the jury be told that he would not be guilty of the offense of transporting intoxicating liquor, if same was obtained for medicinal purposes, even though he took a drink of same before arriving at his destination, and that, if the jury believed beyond a reasonable doubt that he purchased the intoxicating liquor, but that he did purchase the same for the purpose of taking it home for his wife for medicinal purposes, he should be acquitted. The learned trial judge appends a qualification to the bill of exceptions complaining of the refusal of this charge, in which he states that it was not claimed by the accused that all the liquor transported by him was for medicinal purposes, but that the evidence showed that other whisky, besides that which he claimed he had for such purpose, was being transported in his car with his knowledge.

The evidence overwhelmingly seems to show, irrespective of the quart claimed by appellant to have been purchased and transported by him for medicinal purposes, that he bought with the money of his friend three quarts, which he was transporting, and which he did not claim to be transporting for medicinal purposes, and it is difficult for us to see how any claim of error in regard to the charge can be soundly made.

The judgment of the trial court will be affirmed.

On Motion for Rehearing.

Appellant insists that, even though he did transport three quarts of whisky bought by him for a friend, who was in the car with him, such transportation was for accommodation, and not profit, and therefore he was not punishable for such -transportation, and he cites Green v. State, 96 Tex. Cr. R. 652, 259 S. W. 582, and Mayo v. State, 92 Tex. Cr. R. 624, 245 S. W. 241. In Green’s Case it was contended on the trial that all the whisky was transported for medicinal purposes, and the case was reversed because a charge appropriate to this theory was not given. In Mayo’s Case he offered to show by others that he suffered from an illness for which whisky gave relief, and that he had been using same for such illness on the advice of a physician. This evidence was offered to corroborate his own testimony that he was taking the whisky to his home on the occasion in question solely for use as a medicine. This court held it error to reject such proof. Inasmuch as there was no contention made in the instant case that the liquor bought and transported by appellant for his friend was for medicinal purposes, we fail to see the application of the authorities cited.

The refusal to give special charge No. 2 was in no way excepted to, which fact would be a necessary predicate for its consideration by us. Nor do we think paragraph 5 of the court’s main charge open to appellant’s exception taken thereto.

Regretting our inability to agree with the contentions of appellant, the motion for rehearing will be overruled.  