
    McNEIL v. STATE.
    (No. 6767.)
    (Court of Criminal Appeals of Texas.
    Dec. 6, 1922.
    Rehearing Denied Jan. 17, 1923.)
    1. Intoxicating liquors <®=5l3l~Transportation need not bo for purpose of sale.
    Acts 37th Leg. 1st Called Sess. (1921) c. 61, §§ 1, 2 (Vernon’s Ann. Pen. Code Supp. 1922, arts. 588½, 588J/4a), define separate offenses, and the part denouncing the transportation of liquor is not Qualified by thé words, “for the purpose of sale.”-
    2. Criminal law t®=»829(3) — Instruction as to percentage of alcohol held properly refused.
    It was not necessary, in a prosecution for transportation of intoxicating liquors under Acts 37th Leg. 1st Called Sess. (1921) c. 61, § 1 (Vernon’s Ann. Pen. Code Supp. 1922, art. 588⅜), to charge the jury that it was not unlawful to transport alcoholic liquor which did not contain an excess of 1 per cent, of alcohol by volume, where the court instructed the jury that, unless the liquor was capable of producing intoxication, an acquittal must result.
    
      3. Criminal law <©=3304(20) — Whisky judicially known to be intoxicating.
    The courts judicially know that whisky is intoxicating.
    4. Criminal law <©=>395 — Whisky taken from automobile without warrant admissible in evidence.
    Where several officers pursued and arrested defendant while he was traveling on a public road in an autojnobile, whisky taken from the automobile was admissible in evidence in a prosecution for unlawful transportation under Acts 37th Leg. 1st Called Sess. (1921) c. 61, § 1 (Vernon's Ann. Pen. Code Supp. 3922, art. 588½), in view of Code Cr. Proc. 1911, arts. 259, 260, 262, although the officers had no warrant.
    5. Intoxicating liquors <©=3224 — Burden on accused to show transportation of liquor for medicinal, etc., purposes.
    In 'a prosecution for transportation of intoxicating liquors, under Acts 37th Leg. 1st Called Sess. (1921) c. 61, § 1 (Vernon’s Ann. Pen. Code Supp. 1022, art. 588⅛),. the burden was not upon the state to prove that the liquor was not transported for medicinal, mechanical, scientific, or sacramental purposes; the burden in this respect being upon the defendant.
    6. Criminal law <©=>814(7) — Instruction properly refused in absénce of evidence.
    Where there was no evidence in a prosecution for transportation of liquor that the intoxicant came into the possession of accused at a time when it was not unlawful, no charge on,that subject was required.
    7. Criminal law <©=1091 (11)— Bill of exceptions should not be in question and answer form.
    A bill of exceptions relating to admission of evidence violated the rule requiring facts to be stated succinctly, where it consisted of a transcription of the stenographer’s notes in question and answer form.
    8. Criminal law <©=>655(2) — Comment of court held improper, but not prejudicial.
    * In a prosecution for transportation of intoxicating liquor, comment of court that, accused being charged with the possession and transportation, and not charged with the selling of intoxicating liquor, it would be no defense to show that he gave it to some one else for medicinal purposes, was an improper utterance under Code Cr. Proc. 1911, arts. 735, 736, but could not have prejudiced accused.
    On Motion for Rehearing.
    9. Intoxicating liquors <©=>216— Indictment describing liquor held sufficient.
    An .allegation in an indictment for unlawful transportation of intoxicating liquors under Acts 37th Leg. 1st Called Sess. (1921) c. 61, § 1 (Vex-non’s Ann. Pen. Code Supp. 1922, art. 588⅛), describing the liquor as “whisky and intoxicating liquor” was sufficient.
    Appeal from District Court, Randall County; Henry S. Bishop, Judge.
    A. A. McNeil was convicted for unlawfully transporting intoxicating liquor, and appeals.
    Affirmed.
    Stone, Miller & Guleke, of Amarillo, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for unlawfully transporting intoxicating liquor. Punishment fixed at confinement in the penitentiary for a period of one year.

The liquor transported was described as “whisky and intoxicating liquor capable of producing intoxication.”' The law! denouncing the transportation cf intoxicating liquor is not qualified by the words “for the purpose of sale” found in section 1, c. 61, Acts 37th Leg. 1st Called Sess. Vernon’s Ann. Pen. Code Supp. 1922, art. 588¼); Cecil v. State (Tex. Cr. App.) 243 S. W. 988; Crowley v. State (Tex. Cr. App.) 242 S. W. 472; Ex parte Mitchum (Tex. Cr. App.) 237 S. W. 936. The evidence in the case supports the averment that the appellant was transporting whisky. We find no evidence that the whisky contained a percentage of alcohol under 1 per cent, by volume. Sections 1 and 2 of Acts 37th Leg., supra (Vernon's Ann. Pen. Code Supp. 1922, arts. 588¼, 588%a), define separate offenses. Estell v. State (Tex. Cr. App.) 240 S. W. 914.

The indictment against the appellant was under section 1. In the absence of evidence to that effect, it was not necessary to charge the jury that it was not unlawful to transport alcoholic liquor which -did not contain an excess of 1 per cent, of alcohol by volume. The jury was told, both in the main charge and in a special charge given at the request of the appellant, that, unless the liquor was capable of producing intoxication, an acquittal must result. The proof supports the jury’s verdict that the liquor transported •was whisky, a liquid which the courts judicially know as intoxicating. Pike v. State, 40 Tex. Cr. R. 613, 51 S. W. 395; Maddox v. State (Tex. Cr. App.) 55 S. W. 832; Cyc. of Law & Proc. vol. 23, p. 61; Black on Intoxicating Liquors, § 12.

At the time of his apprehension, the appellant had in his possession in an automobile . in which he was traveling on the public road a quantity of whisky. Several officers pursued and arrested him and took possession of the whisky. Upon these facts the court was not in error in refusing to exclude the evidence thus obtained. Our statutes (Code Cr. Proc. arts. 259, 260, and 262) authorize a peace officer to arrest one who in his presence commits a felony or who, having within the knowledge of the officer, committed a felony and is about to escape, there being no sufficient time to secure a warrant, and the person or effects of the offender may be searched and the evidence of the crime seized without transgressing the rule prohibiting unreasonable searches and seizures. Brown v. State (Tex. Cr. App.) 242 S. W. 218; Jones v. State, 85 Tex. Cr. R. 546, 214 S. W. 322, and cases therein cited.

There was no error in refusing appellant’s special charge to the effect that the burden was upon the state to prove beyond a reasonable doubt that the whisky was not transported for medicinal, mechanical, scientific, or sacramental purposes. The burden in this respect was upon the appellant. Robert v. State, 90 Tex. Cr. R. 133, 234 S. W. 89. The court, however, did so instruct the jury in. its main charge, thereby favoring the accused to an extent which the law did not require.

There was no evidence that the intoxicant came into the imssession of tl(e appellant at a time when it was not unlawful. No charge on that subject was required.

The arrest, it seems, was made within a few miles of the city of Amarillo. Prior to his arrest the appellant had called over the telephone the witness Allen and told him that he (the appellant) would be in Amarillo in Potter county that night about 1 o’clock. Allen'told him that the store would be closed, but that he might come to his room and sleep with him. Allen was in the wholesale drug business, and testified that he had never bought any whisky from the appellant for medicinal purposes nor for any other purpose, but that on a previous occasion the appellant had given him one or two drjnks of' whisky. These, however, were merely social courtesies.

At the time of the offense and at the time of the trial it was unlawful to possess intoxicating liquor save for certain purposes named in the Constitution. One count in the indictment charged the unlawful possession of such liquor, and upon the trial testimony relevant to that issue, as well as (that of transporting the liquor, was available to the state. It is not made clear how the transaction referred to would bear upon either issue. The bill of exceptions is not so drawn as to negative its doing so. Moreover, the bill is violative of the rule which requires the facts tp be stated succinctly. Instead of containing a narrative statement such as would reveal the ruling of the court, and so much of the evidence as briefly stated would illustrate the error compláined of, it consists of a transcription of the stenographer’s notes in question and answer form. See Jetty v. State, 90 Tex. Cr. R. 346, 235 S. W. 590; Rylee v. State, 90 Tex. Cr. R. 482, 236 S. W. 744; McDaniel v. State, 90 Tex. Cr. R. 636, 237 S. W. 292; Watson v. State, 90 Tex. Cr. R. 576, 237 S. W. 298; Alley v. State (Tex. Cr. App.) 241 S. W. 1024; Childress v. State (Tex. Cr. App.) 241 S. W. 1029. We are unable to determine from the bill that there is error in receiving the testimony.

The possession in his automobile of a quantity of whisky at the time of his arrest is not controverted. It is also shown that he was traveling in the direction of the city of Amarillo, which was near by. It is not believed that the fact that he on another occasion had a bottle of whisky in Amarillo and gave a friend of his one or more drinks of it was of such harmful nature as to vitiate the verdict against him. Particularly is this true when it is recalled that the lowest penalty permitted by law is assessed. The transaction complained of, so far as the bill reveals, was not under circumstances .that rendered the appellant guilty of an offense other than the one for which he is on trial.

During the examination of the witness Foster, appellant’s counsel propounded to him this question:

“Yes; that is what I say, as usual. Well, was he sick or not, Mr. Foster?”

The court referred to sustain the objection to this question, though the bill does not reveal what answer was made nor what preceded the question. The supposed error at which the bill is directed, however, is the comment by the trial judge, which was, in substance, that, the appellant being charged with the possession and transportation, and ■not charged with the selling of intoxicating liquor, it would be no defense to show that he gave it to some one else for medicinal purposes. It is insisted that this was a comment forbidden by law which inhibits remarks of the court indicating his opinion as to the weight of the evidence or in any way discussing the facts. Code of Crim. Proc. arts. 735 and 736. The bill in question reflects an incautious utterance of the trial court. It is not every such utterance, however, that requires a reversal. Those only that probably injured the accused will do so. Furlow v. State, 41 Tex. Cr. R. 12, 51 S. W. 938, and other cases listed in Branch’s Ann. Tex. Penal Code', § 269.

In the instant case there was no independent defensive evidence, and, if we properly comprehend the record, there was no evidence that the appellant was transporting the liquor to be used as medicine for himself or any other person. In this state of the record, we believe that the bill reveals no reversible error.

The record is a very voluminous one, containing 56 bills of exceptions. We have examined them, but deem it inexpedient to write about them in detail further than to say that from them we discern no harmful error committed by the trial court in the conduct of the case. The evidence we deem quite sufficient tó support the conviction.

The judgment is therefore affirmed.

On Motion for Rehearing.

LATTIMORE, J.

The allegation as to the character of liquor transported by appellant appears from the indictment to he that it was “whisky and intoxicating liguor.” This was sufficient. The proof showed whis-ky, and that in the opinion of an experienced witness same contained 80 per cent, alcohol. This sufficiently met the allegation as to the character of said liguor. The undisputed proof showed that the transportation by appellant in his car oí eight gallons of whisky from Canyon, in Randall county, to the point of arrest near Amarillo, in Potter county. This sufficiently made out transportation. Liquor taken from appellant’s car was properly admitted in evidence, though the officers had no search warrant. Welchek v. State (Tex. Cr. App.) 247 S. W. 524, opinion recently handed down. Submission of the issue as to the acquisition of the liquor by appellant prior to the adoption of the Dean Law was not called for by any evidence adduced.

Following a question asked Mr. Foster, “Well, was he sick, Mr Foster?” appellant’s bill of exceptions No. 23 set's out a discussion of the law applicable to certain facts, followed by the statement by appellant’s counsel of the withdrawal of the question if the court thought it immaterial. The court said he did so think. Appellant’s counsel then' said he thought the other question immaterial. The court replied that he asked the question in order to find out. Appellant’s counsel then 'said he thought both questions immaterial. At this point another of appellant’s counsel made the following statement:

“Your honor, we are not so sure about that as a matter of law, and we want to take a bill of exception to the court’s statement, which, I understand to bo, in substance, if he had it to give to somebody else for medicinal purposes, it would be no defense, or, if he transported it to somebody else, it would be no defense. If there is any error in my statement of the bill, I would like to have it corrected now.
“The Court: All right.
“Mr. Guleke: Defendant excepts to the ruling of the court and we object further because it is a comment on the weight of the evidence.”

We quote this statement of the ground of appellant’s objection in order to make it plain that there was no sufficient complaint of any comment by the trial court on the weight of any evidence then accepted or rejected. Said bill of exceptions nowhere states any evidence relative to which any comment of the court might be pertinent. Appellant contends that the. court should have submitted the question of his right to transport liquor for purposes of sale to a drug company in Amarillo. We have carefully examined the record, and find ourselves unable to detect any evidence raising the issue. The druggist testified that he had never bought any liquor from appellant, and that be made no engagement or contract to buy any on this occasion, nor was anything said between them of any purchase. The conversation had over the telephone between appellant and said druggist seems only to reflect the fact that appellant desired a place to sleep after reaching Amarillo on the night in question. Appellant also complains of certain remarks of the trial court to the effect that, when insanity was an issue in a case, the point involved was the knowledge of the accused of the right or wrong of the particular transaction charged. We are unable to conclude this a comment on the weight of any testimony then before the court. A witness had been asked if he thought appellant’s mind to be unsound and had testified that he did. This testimony remained for the consideration of the jury, and the statement by the court apparently was of a correct principle of law and seems to have been intended merely as an announcement of the court’s conclusion as to what should be shown by proof in the case.

Finding no error in the record, appellant’s motiob for rehearing will be overruled. 
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