
    TURNER v. STATE.
    (No. 7076.)
    (Court of Criminal Appeals of Texas.
    Oct. 3, 1923.
    Rehearing Denied Nov. 7, 1923.)
    1. Intoxicating liquors <&wkey;I3l — State not required to prove that transportation was for purpose of sale.
    In a prosecution for unlawfully transporting intoxicating liquor, proof that the liquor was transported for sale is unnecessary.
    2. Intoxicating liquors <&wkey;216 — Averment of indictment as to intoxicating properties of liquor held sufficient.
    WThere an indictment for unlawful transportation of intoxicating liquor charged the liquor was whisky and that it was intoxicating, an additional averment therein that it contained more than T per cent, alcohol was unnecessary.
    3. Criminal law i&wkey;394 — That search was made without warrant would not preclude proof of matters disclosed thereby.
    That a search of defendant’s ’automobile was conducted without a search warrant would not preclude proof by the officer who made the search that he found whisky.
    4. Criminal law <&wkey;l 111 (3) — 'Qualification by trial court of bill of exceptions is controlling.
    A qualification by the trial court of a bill of exceptions-is controlling on appeal.
    5. Criminal law &wkey;>763, 764(10) — Instruction of court held not upon weight of evidence.
    Where the court, in a prosecution for transporting liquor, instructed that the state must prove beyond a reasonable doubt that defendant “did unlawfully and knowingly transport intoxicating liquor,” and thereafter, in response to a question by the jury as to the meaning of the word “knowingly,” replied, “In determining whether or not an act was knowingly done, the jury may, in their discretion, * • * consider all the facts and circumstances, if any, in evidence,” held, under Vernon’s Ann. Code Cr. Proc. 1916, art. 754, that such reply was not error as being upon the weight of the evidence.
    On Motion for Rehearing.
    6. Criminal law <&wkey;l i66,'/2(I)> 1169(2) — Error, if any, in admission of testimony and reprimand of defendant, held harmless.
    In a prosecution for transporting intoxicating liquor, where defendant’s guilt was conclusively established and the minimum penalty affixed, errors, if any, in permitting testimony that defendant had stated he sold whisky, and in reprimanding him for threatening gestures toward one of the state’s witness, held harmless.
    7. Criminal law <&wkey; 1162 — Nonprejudicial error does not call tor reversal.
    An error committed during trial does not call for a reversal, unless it is such that it must be said from the record that it injured accused or was of such' a character that it may have done so.
    —->Vm- other cases see same topic and KEF-NUMBER, in all Key-Numbered Digests and Indexes
    
      Appeal from District Court, Randall County; Henry S. Bishop, Judge.
    J. W. Turner was convicted of unlawfully transporting intoxicating liquor, and he appeals.
    Affirmed.
    Stone & Guleke and E. T. Miller, all of Amarillo, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for the unlawful transportation of intoxicating liquor ; punishment fixed at confinement in the penitentiary for one year.

The evidence reveals the fact that appellant was carrying in his automobile a gallon of corn whisky. No evidence was introduced on behalf of the appellant.

The contention that it was incumbent upon the state to prove that the liquor was transported for sale is unsound. See Stringer v. State, 92 Tex. Cr. R. 46, 241 S. W. 159; Crowley v. State, 92 Tex. Cr. R. 103, 242 S. W. 472.

The indictment contained an averment that the liquor was whisky and that it was intoxicating. An additional 'averment that it contained more than 1 per cent, of alcohol was unnecessary. See Estell v. State, 91 Tex. Cr. R. 481, 240 S. W. 913.

The fact that a search of appellant’s automobile was made without a search warrant was not an impediment to proof by the officer who made the search that he found the whisky in the car. See Welchek v. State, 93 Tex. Cr. R. 271, 247 S. W. 524.

Complaint is made of the receipt of testimony to the effect that appellant had stated that he had sold com whisky. The proof being conclusive and uncontroverted that he transported a gallon of corn whisky, and there being no defensive matter introduced, and the minimum punishment having been assessed, the admission of the evidence was apparently harmless.

While a state witness was testifying, appellant made threatening gestures towards him, and the judge admonished appellant to keep his hand down and cease making demonstrations. There is some conflict between the bill and the qualification, but the latter prevails. Under the facts, the reprimand seems to have been justified. Cyc. of Law & Proc. vol. 12, p. 538; Corpus Juris, vol: 16, p. 829, §§ 2095-2100.

The court, in the second paragraph of its main charge, instructed the jury that the burden was upon the state to prove by the evidence, beyond a reasonable doubt, that appellant “did unlawfully and knowingly transport intoxicating liquors.”

After retirement, the jury submitted to the court, in writing, the following question:

“The word ‘knowingly’ in the second part of the court's charge is causing much dispute and disagreement in the jury room. We note that this word does not appear in the indictment.
“Must we give this word serious consideration and look for real evidence to support this particular, portion of the court’s charge?
“Perhaps you cannot, or dare not, answer; however, we would appreciate what explanation you may be permitted to give us on clause XI of the court’s charge.”

The court made the following reply:

“In determining whether or not an act was-knowingly done, the jury may, in their discretion, as in determining any other issue in the case, consider all the facts and circumstances,, if. any, in evidence.”

This is criticized as being upon the weight of the evidence. We think the complaint is without merit. See Code of Crim. Proc. art. 754; Vernon’s Tex. Crim. Stat. vol. 2, p. 567; Benavides v. State, 31 Tex. Cr. R. 173, 20 S. W. 369, 37 Am. St. Rep. 799.

The judgment is affirmed.

On Motion For Rehearing.

HAWKINS, J.

Witness Leonard testified that in the evening of the same day appellant was apprehended with the whisky in his wagon, appellant said to witness in-substance :

“A man can’t make a little honest money without being arrested. I have been arrested and charged with selling corn whisky. By God! I did sell corn whisky, and have the best corn whisky in the country.”

Objection was interposed because appellant was not charged with selling it, but with transporting it. While this objection, was being urged, appellant made an angry demonstration towards the witness for which he was reprimanded by the court. These two matters are seriously urged as presenting error for which the judgment should have been reversed. We did not think it necessary in our, former opinion to determine whether any error was committed in receiving Leonard’s testimony. We do not deem it necessary to discuss it now.

We think it a sound rule that, generally speaking, even if an error is committed, during the trial, it does not and should not call for a reversal unless it was such that we may say from the record it injured accused, or was of such character that it may have done so and the record does not authorize us to reach the conclusion that it did not injure him. The questions raised by both incidents complained of in this ease may very justly be disposed of under the foregoing rule without reference to any other.' There was no defensive evidence of any character. The state made a clear case-against accused independent of the matters-complained of. The jury under their oaths, as honest men could do no less than find appellant guilty; this being true, ' and the lowest penalty haying been assessed, as shown by the record, indicates that neither •of the incidents complained of could or did work injury. To argue that regardless of the other evidence plainly showing guilt, the jury might have acquitted, in the absence •of the matters complained of, is to speculate that the jury might have stultified themselves under such circumstances.

Finding no reason justifying a conclusion other than as reached originally, the motion for rehearing is overruled.  