5 S.W.2d 993 | Tex. Crim. App. | 1928
Offense the unlawful transportation of intoxicating liquor, penalty one and a half years in the penitentiary. *522
Three boys were around a pool of water when appellant rode up on a horse. In replying to his inquiry they told him they were hunting jack-rabbits. He rode back up the branch about fifty yards and testified he found a jar of whiskey. The three boys came up and drank some of it. One of them testified he rode off with it. Appellant testified that he went a few feet over to the edge of the water and secretly dropped it in the water on the opposite side of the boys so they could not see him and that he did not go away with it.
Appellant correctly contends that under his evidence he was not guilty of the transportation of intoxicating liquor and that his evidence raised an issue which should have been affirmatively submitted to the jury. The court in his third paragraph used the following language:
"By the term 'transport' as used in this charge is meant to carry from one place to another regardless of the distance carried."
He nowhere charged the jury to acquit if the jury believed or had a reasonable doubt that appellant only carried the whiskey a few feet to secret it from the boys present. The definition given by the court was under the peculiar facts of this case probably misleading. The approved definition of the word "transport" is: "The carrying or conveying from one place, locality or country to another." Lee v. State,
For the error discussed, the judgment is reversed and the cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.