
    COLEMAN v. STATE.
    (No. 5722.)
    (Court of Criminal Appeals of Texas.
    April 21, 1920.)
    1. Statutes i@=o64(9)— Provision against transportation of liquor is valid, though other parts of act are invalid.
    The provision of Acts 35th Leg. 4th Called Sess. (1918) c. 24, § 3, prohibiting transportation o'f intoxicating liquor, is constitutional, though section 2 of same act, prohibiting sale of intoxicating liquor, was invalid because the Constitution had prescribed the manner in which sales could be prohibited.
    2. intoxicating liquors <&wkey;l38 — Person can carry intoxicating liquors home for personal use.
    Under Acts 35th Leg. 4th Called Sess. (1918) e. 24, § 3, prohibiting transportation of intoxicants, and section 7, continuing in force all acts of that session regulating sales of intoxicants, chapter 31, § 9, of the acts of the same session, recognizing the right to carry intoxicating liquors home for personal use, must be given effect, so that in a prosecution for transporting intoxicating liquor it was error to refuse an instruction authorizing acquittal if accused was transporting it home for his personal use.
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    E. Coleman was convicted of transporting intoxicating liquor, and he appeals.
    Reversed.
    Baskett & De Lee, of Dallas, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, J.

The appellant is convicted of transporting intoxicating liquor in violation of section 3 of the Acts of the Thirty-Fifth Legislature, Fourth Called Ses-. sion (1918) chapter 24, known as the StateWide Prohibition Law. This act has been since superseded, but was in force at the time the offense was committed. Its efficacy is challenged upon the proposition that section 2 of the same act, which prohibited the sale of intoxicating liquors, was held inoperative in the case of Ex parte Myer, 207 S. W. 100, and that therefrom the result followed that the transportation could not be prohibited because it would interfere with the exercise of the right of sale. The result in Ex parte Myer, supra, was not reached upon the proposition that a citizen was vested with the right to sell intoxicating liquor. The theory upon which that case was decided was that the Constitution prescribed the manner in which sales could be prohibited, and that their prohibition must be effected in that manner. The Constitution does not further restrict the right of the Legislature on the subject. We Have discussed the matter at some length in Ex parte Davis, 215 S. W. 341, in which the power to prohibit the manufacture of such liquors was upheld, and in the case of Ex parte Fulton, 215 S. W. 331, in upholding the power of the Legislature to enact the amendment to the so-called Allison Shipping Law, which amendment is embodied in chapter 31, Acts Thirty-Fifth Legislature, Fourth Called Session (1918), we referred to a number of court decisions which are analogous to the present question. The particular section of the act in question was upheld by the Court of Civil Appeals in the case of Railway v. State, 212 S. W. 845. The motion to quash the indictment upon the ground that the act of the Legislature upon which it is based is void is overruled.

In section 9 of chapter 31 of the Acts of the Thirty-Fifth Legislature, Fourth Called Session, the right of one to carry intoxicating liquors to his home for his personal use, or for the use of members of his family, is recognized. This is a part of the legislation upon the subject of intoxicating liquors enacted at the same session of the Legislature at which section 3 of chapter 24, the act upon which the prosecution was founded, was enacted. Under well-established principles of construction, the acts of the same Legislature upon the same subject are to be construed together. Chapter 24 is silent upon the subject mentioned in section 9 of chapter 31, supra, and the latter, we think, must be given effect. It is expressly stated in section 7 of chapter 24 that—

“No law now in force * * * regulating the sale of intoxicating liquors, or any act of the Fourth Called Session of the Thirty-Fifth Legislature” regulating such sales, are repealed, but that all “remain in full force and effect.”

In his testimony the appellant declared 'that his possession of the intoxicating liquor was for the purpose of carrying it to his home for his own personal use. His home was in the city of Dallas, and he was found in possession of the liquor at the town of Mesquite, in that county, and was carrying it in an automobile owned by his wife. 1-Ie sought in a timely and appropriate manner to have the jury instructed that if his transportation of it was for no unlawful purpose, but that he was taking it to his home solely for his personal Use, an acquittal should re-, suit.

We think this instruction should have been given, and that a failure to give it requires a reversal of the judgment, which is ordered. 
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