*1 2áá [February, upon which this court would be authorized to order a reversal of the judgment.
For the reasons stated the motion for 1923. Hughes
I. Alf February 7, 1923.
Rehearing February 7, denied 1923. Rehearing granted and cause reversed —Transporting Intoxicating liquors Liquor Laws—Held Constitutional. — liquor including state, pros- laws of this the law under which this brought, many ecution have so times been held constitutional valid Supreme well as Court the United States that to cite authorities. The Court of the United error, States dismissed several writs of to con- question. sider this Unnecessary—When. 2.—Same—SearchWarrant — upon searching appellant’s Where a witness was n automobile, arrest, whisky while was under but such Welchek, officer had no search 7136. no error is shown. See ON SECOND REHEARING. Same—Charge Weight of Court—On of Evidence. 3.— charged jury they whisky the court that if Where believed “that the the officer the defendant’s car” etc. such evidence, sharp and reversible error. as to whether bottle found in the evidence contained in his car. For the cause is reversed. error from tbe of Morris Appeal County. District Court Tried below 'Wilkinson, R. T. tbe Hon. for transporting intoxicating from a Appeal liquor; conviction year penitentiary. in tbe penalty, case. states the
Tbe Lloyd & Bolin, and W. Davidson, appellant. Henderson Storey, Attorney General, R. Assistant G. for the State.
HAWKINS, Conviction is for transportation liquor punishment intoxicating with assessed year’s at one confine- penitentiary. ment in the Hughes ground presented upon quash
Motion to the indictment proceeded unconstitu prosecution that the law under which *2 being of in with the Constitution tional and unenforceable Congress de Act of thereunder. Since States and' the the United Gilmore, 88 228 Rep., 529, Texas Crim. W. in Ex Parte S. cision frequently adversely question has been decided to Rep., 199, so save eases, that we to cite the contention 308, State, 89 Clyde Rep., of Chandler v. cases the two Rep., 336, 599, Rep., 232 S. Rep., 232 W. and W. S. of John Chandler v. 337, and the two cases 308, Rep., W. and 89 Texas Crim. Rep., 306, 232 S. S. urged The here were relied in the same contentions W. being holding Not satisfied with cf this last cited. four cases ap error to the United States Court were of writs granted. That Court, on dismissed plied for and questions consider the cases, to raised. said exception complains per- that a first bill of state witness searching appellant’s to automobile while mitted arrest, whiskey that such appellant was under authority State, (No. Under of search warrant. Welchek had no 7136) objection was not tenable. of questions presented by exception relate
All bills to give special charges. court and to refusal to certain record, obviously, is and its absence No upon questions intelligently pass raised relative to the we can not charge given, nor to those refused.
Finding record, in the is affirmed. no error
Affirmed. ON MOTION FOR REHEARING.
MORROW, Presiding being statement of facts now will us, disposing same be considered with record cf the case. testimony, appellant
According to State’s posses- had in his containing whiskey. corn pint He went to toilet sion a in the .bosom his placed coming out, the bottle shirt. Upon some got into his automobile rode little he distance about the whiskey in his shirt bosom. town with the showing given by tes- Evidence liquid, after the bottle was timony of the officer that whiskey. contrary. We like Other witnesses smelt is sufficient to show that was in think the evidence containing whiskey. pint or less possession evidence, however, possession that his was unlawful or that was no any statute, Under possessed it with unlawful intent. he [.February, possess quantity intoxicating liquor, under statute, to the no inference of intent recent amendment possession. is writer drawn from the believed bring purview the facts do not the case within the of the statute However, transport intoxicating liquor. my forbidding as- contrary opinion. sociates This matter was discussed are Gandy original, concurring dissenting opinions case of reference is made. which The motion for
ON SECOND FOR MOTION REHEARING. Presiding MORROW, presented is denom- *3 application inated an rehearing. file a second motion for Tech- nically such, substantially, it is but it is orig- not. The case on the hearing inal merits, was decided on its not because clerk the of the trial failed, part court had appellant, without fault on the of the up to send to this court the of facts. When the statement filed, passed question facts was the case was on. particular discussed in pertinently was brought not to the atten- tion of the court.
Attention is paragraph drawn to of the of the from copy which we by word,
“You are ‘transport,’ instructed that the as used in charge, carry place Noiv, you is meant to from one to another. if beyond believe whiskey by reasonable doubt that the the officer in brought place defendant’s was to that from some' defendant, such, place by transport- then would ing intoxicating liquor.” paragraph being upon assailed in was the trial court as appellant of the evidence in it that assumes that had
whiskey in his appears testimony car. from the State’s there that was a the car of the under circumstances indicat- ing carried; had that it been that searching while an officer was car without a the bottle. broke The officer According stated that the bottle had corn in it. to his testi- mony, patent the bottle was a medicine bottle. The contents was not officer, tasted but whiskey, he smelled it odor of and it is, spoonful that there a remnant of part about of the bottle after it was broken. The put finger his in this remnant said, only it. smelled He way “That I judging have of whiskey.” it to be broken, Before bottle it was a sixteen- witnesses, ounce bottle about two-thirds full. The other in substance to the same effect as did the officer, both of them relying upon determining the odor in that the substance the bot- v. episode, saw appellant who whisky. for the A witness
tie was did not place where the at once went said, piece from the feet, couple anything. He was a smell it. try smell not officer, did but he up picked that was any odor. He did detect not was, liquid odor of the upon the based opinion witnesses words, of the the statement competent In other think, evidence. we whisky, that odor of acquainted with the he was officer that it was judgment, in his that odor, had such question jury. not con- It was testimony go before the proper whisky, was intoxi- whisky; it was nor that liquid was however, that clusive, might odor article have that the liquor. It is conceived cating it small that alcohol so yet an amount contain for the intoxicating liquor. Witnesses not be would classified had the odor substance to whether the an issue as appellant raised 599; Estel State, Cathey v. See Rep. 481. Crim. be- case, are constrained present Under the upon the it incumbent made was such as that the evidence lieve upon to be called jury would charge that the frame his court to so whisky, liquid possessed determine whether liquid was given as the inasmuch made, namely, it objection whisky, it was amenable to amended. See been have weight of the evidence should upon the State, 70 Texas 115; Jones App., Webb Stat., 2, p. note Vol. Crim. 343; Vernon’s Texas *4 heretofore granted, the affirmance rehearing is cause re- is reversed aside, rendered is set manded. and remanded.
Reversed . Jim
Violating Tick Law—Information—Defective. penal, Where the statute names certain acts as wuen done within cer- accompaniments, indictment, charging tain such violation of the negative predicate
must the existence of the conditions. The information in having allege cattle, this case failed to moved his without permit fatally Industry, written of the United States Bureau of Animal defective and the cause is reversed and dismissed.