
    JOHNSON v. STATE.
    (No. 10052.)
    (Court of Criminal Appeals of Texas.
    March 31, 1926.
    Rehearing Denied May-26, 1926.)
    1. Intoxicating liquors <&wkey;236 (4) — Evidence held sufficient to support conviction for transporting intoxicating liquor.
    Evidence held sufficient to support conviction for transporting intoxicating liquor, where accused, who was crippled, sat in automobile while one who was with him obtained whisky secreted in pasture, and had started back to car when stopped by sheriff.
    2. intoxicating liquors ¡&wkey;l67.
    Parties may be coprincipals in commission of offense of unlawfully transporting intoxicating liquors.
    3. intoxicating liquors <&wkey;l38.
    Conviction may be had for transporting intoxicating liquor whenever transportation has begun; it not being necessary that it be completed.
    On Motion for Rehearing.
    4.Criminal | law <&wkey;753(l) — Motion for instructed verdict at close of state’s testimony held properly refused.
    Motion for instructed verdict at close of state’s testimony held properly refused, since questions of fact and credibility of witnesses are for jury.
    Appeal from District Court, Howard County; W. P. Leslie, Judge.
    Albert Johnson was convicted of unlawful transportation of intoxicating liquor, and be appeals.
    Affirmed.
    Anderson & Mobley, of San Angelo, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for tbe State.
   HAWKINS, J.

Conviction is for tbe unlawful transportation of intoxicating liquor, with punishment assessed at one year in tbe penitentiary.

Appellant’s main contention is that tbe evidence does not warrant the conviction-. We are not able to agree with bim on tbis point. Tbe evidence is short and undisputed. In some way not disclosed,’ tbe sheriff had learned there were three gallon jugs of whisky secreted under a cedar bush in a pasture some three miles from Big Springs, and near the road leading from there to appellant’s borne. Tbe officer bad secreted himself, and was watching tbe whisky. About 2 o'clock in the afternoon a car driven by appellant came from tbe direction of tbe town named and stopped in tbe road at a point opposite the whisky. W. S. Wilkerson got out of tbe car, went through tbe fence, walked up to where the whisky was, looked over in the bush under which it ‘was sitting, ran back and got in tbe car, and they drove on down the road out of sight, but returned in a few minutes going back towards town. Tbe officer remained on .watch. About sundown, appellant and Wilkerson again appeared. Appellant was driving. Pie stopped tbe car, but left tbe engine running. Wilkerson again went to tbe whisky, picked up two of tbe jugs, and started to the car with it. After going some 10 or 15 steps, tbe sheriff stopped bim. Appellant’^ own evidence is to tbe effect that, as be.and Wilkerson were going to Big Springs on the morning of tbe day mentioned, appellant bought the whisky from a Mexican, but, not wishing to take it into town, bad directed bim to put it. in tbe pasture, where tbe officers found it, and that be intended to get it as be went back home. He explained that tbe trip made by them at 2 o’clock was only to ascertain if tbe whisky was still there. Appellant claimed tbe whisky and said Wilkerson bad no interest in it whatever, but was only bringing it to tbe car for appellant. This is perhaps explained from the record showing that appellant was crippled as the result of injuries sustained in an accident some time before.

The recital of the foregoing facts leave no douBt as to the evidence being sufficient to support the verdict and judgment. Parties may he coprincipals in the commission of the offense of unlawfully transporting intoxicating liquor the same as in the commission -of any other felony. The learned trial judge recognized this, and properly charged on principals in the present case. Appellant and Wilkerson were acting together. Indeed, Wilkerson seemed to be acting for appellant in bringing the whisky to the latter’s car. Appellant intended continuing with it to his home, which was several miles distant. The transportation had begun. It was not necessary that it be completed. Lamb v. State, 95 Tex. Cr. R. 457, 255 S. W. 424; Lee v. State, 95 Tex. Cr. R. 654, 255 S. W. 425; Black v. State, 96 Tex. Cr. R. 56, 255 S. W. 731; Hannon v. State, 96 Tex. Cr. R. 660, 259 S. W. 1083; Finley v. State, 96 Tex. Cr. R. 542, 258 S. W. 1062; Tullos v. State, 97 Tex. Cr. R. 122, 268 S. W. 174; Winters v. State, 101 Tex. Cr. R. 276, 275 S. W. 1015.

Appellant defended on the ground that he had bought the whisky to take home to be used for medicinal purposes. This issue was properly submitted, and the jury settled it against accused.

We' have carefully examined the bills of exception which raise other questions. In our opinion, none of them present error calling for a reversal.

The judgment is affirmed.

MORROW, P. X, absent.

On Motion for Rehearing.

LATTIMORE, J.

Appellant again urges that this case should have been reversed because the trial court refused his motion for an instructed verdict; said motion being presented at the close of the state’s testimony. We know of no rule either of statute or decision which makes it 'obligatory upon the court, in the first instance, to pass upon the sufficiency of the testimony. Our statute puts the burden of passing1 upon the facts proven and the credibility of the witnesses upon the jury. If appellant felt satisfied that the state had not made out its case, and desired a decision upon the testimony originally offered by the state, he had the right to rest his case and have it then decided, and could have sought a new trial in the court below or on appeal on the sufficiency of the testimony.

We have again reviewed the record, having m mind appellant’s complaint at the holding that he was sufficiently shown to be a principal offender. It being admitted that W. L; Wilkerson transported the liquor in question enough to make his act a violation of the law, we find in appellant’s own testimony the admission that the whisky was his; that he had it put at the place where it was when Wilkerson took it into his manual possession at the time of transportation; that he drove to said point in his car, intending to get the whisky and carry it on to his home; that he sat in the car with its motor running while' Wilkerson got out of said car and went to the place where the whisky was, and picked it up and started back to the car with same. The proposition seems so plain that the testimony of appellant supplied every necessary element in establishing the fact that he was thus present, "acting with Wilkerson with a common intent and purpose, as to leave 'no doubt of the propriety of the conclusion that he was a principal, as found by the jury.

Being unable to agree with appellant’s contentions, the motion for rehearing will be overruled. 
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