
    ESTRADA v. STATE.
    (No. 7476.)
    (Court of Criminal Appeals of Texas.
    Nov. 12, 1924.
    Rehearing Denied Feb. 11, 1925.)
    1. Intoxicating liquors <®=>I3I — Transportation, to constitute crime, need not have been for purposes of sale or commercial purposes.
    Transportation of intoxicating liquor, to constitute crime, need not have been for purposes of sale or commercial purposes.
    2. Criminal law <3=>970(3) — Questions as to formation of grand and petit juries, and as to law under which prosecution was conducted, should have been presented in limine, and not motion in arrest of judgment.
    Questions as to formation of grand jury and of petit jury and as to law under which prosecution was conducted, should have been presented in limine, and not in motion in arrest of judgment.
    Morrow, P. J., dissenting.
    Appeal from District Court, Bastrop County; R. J. Alexander, Judge.
    Aurellio Estrada was convicted of the unlawful transportation of intoxicating liquor, and he appeals.
    Affirmed.
    R. A. Brooks, of Bastrop, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Bastrop county of the unlawful transportation of intoxicating liquor, and his punishment fixed at one year in the penitentiary.

There is no question under the facts but that appellant was guilty of carrying on a public road a bottle of whisky. Upon analysis it was found to contain 40 per cent, of alcohol, and its intoxicating quality was testified to by persons who tasted and examined same. The indictment contained two counts ; one charging the transportation of intoxicating liquor, and the other the transportation of liquor containing more than 1 per cent, of alcohol by volume. .The court submitted both counts to the jury and a general verdict was rendered, finding the appellant guilty as charged in the indictment. The judgment of the court was that appellant was guilty under the second count in the indictment.

The refusal of a special charge instructing the jury that, unless they found from the evidence that the liquor was transported for the purposes of sale or commercial purposes, appellant should be acquitted, was properly refused, as was likewise a request for a peremptory instruction.

There is a bill of exceptions to the overruling of a motion in arrest of judgment. The matters presented in the motion in arrest of judgment, if available, should have been presented in limine. They relate to complaints of tlie formation of the grand jury and of the petit jury, and are directed at the law under-which the prosecution was conducted, and at the refusal of said law to permit the appellant to have a suspended sentence.

Finding no error in the record, the judgment of the trial court will he affirmed.

MORROW, P. J. (dissenting).

Appellant was arrested upon a public road, and in his pocket there was found a 12-ounce bottle, about two-thirds full of whisky. There is no evidence that he was making any unlawful use of it further than that which might be inferred from the fact that he was in possession of it while traveling on the public road.

In view of the statute which makes the possession of intoxicating liquor lawful, except where it is possessed for the purpose of sale, and the statute which declares that the inference of an unlawful possession applies only where the quantity possessed is more than a quart, the evidence is deemed by the writer to be insufficient to support the conviction.

The reasoning and authority upon which this view is based will be found stated in more detail in the dissenting opinion of Gan-dy v. State (No. 7579; Tex. Cr. App.) 268 S. W. 951, to which reference is made. 
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