Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OFTEXAS AUSTIN GROVERSELLERS
ATTORNEY GENERAL
~!onor&le D. :y. Durkhaltcr;
County Attorney, 'Ihrockmorton County
Throckmorton, Texas
Dear Sir:
at forour opinion, ving i5terprgtation in which you sub e&ions are restated
of .the Texas Isq as follows:
h a casa should~the judge,instruct e transportation must be fo&the
to be unlawful? a prosecutioh for unlawful transpor- tation of intoxicating li:;uor 15 a dry ares, is' the ownership of the li.;uor material? In other vzords, does it make any difference rhather or not one~.ov.ns ,any interest in the liquor being transported by dim, as regards criminal liability7
The prohibitory ;:rovisions of the stvtute raIiiVWIt to :;uur problems are contained in Section 4 (b) of the Texas Liquor Cbntrol Act (Yor50n's ,inilotated ?cnal Code, .irtv 666-4 (b):
Ronorablo 1). \;'. Rurkhaltar, Page 2
n It shall be unlawful for any person in any dry area to mrnufncturo, distill, brew, sell, pos- scss for the ;;ur;ose of ~618, l?port into this State, px?ort from the St.:te, trcnsl:ort, distribute, ware- house, store, solicit or take orders l'os, or for the purpose of sale tn bottle, rectify, bl-lnd, treat, fortify, nix, or Izocnss any~liquor, dis- tilled spirits, whi&key, gin, brandy, wine, rum, beer or ale." Xe hav3 carefully examined the entire statute, in- cluding the various exceptions availoblo as defenses to the ant; we fail to find any provision ::'lzatsvor quoted nection, to require either allsgation, ;~roof or instruction by the Court .that transportation of prohibited liquor must be for the purpose of sale in orsor to sustain a conviction for such transportation in a dry area. In our opinion the holding of the Court of Criminal i~ppu~ls in the case of Crowloy v. iitate, .92 Tex. Cr. R. 103, 242 S. ‘ii'. 472, followed fin a long lino of decisions by that 'court, is controlling. Whilu. it is true ,that tha Court had under consideration 5.5 the-Crowley case the state-wide prohibition act as it existed,v;hen the.oRlnion was. rendered, tho 1ent;uage em;rloyed by the Legislature is sub-. stantially tha same in the present statute as it relates to dry ar as within the state. See also Stringer v. State, 92 Tex. Cr. R. 46, 241 S. Vi. 159; Porester v. State, 94 Tex.,Cr.
R. 295, 250 S. X. 1027.
You are therefore respectfully advised that the answers to each of ~the first two questions proQoundep by you .ere in the negative. In ansv;or to your third question, your attention is
invited to Section 23a, Subdivision 1 of the statute (Vernon's Annotated Fenal Code, Art. 666-23a,. Subdivision 1);
"It is provided that any person who purchases alcoholic bevoragas tor,i!is 0~5 consum:jtion may trens::ort same from a plucc* v!here the sale thereof is legal to a plsce where the :jossession thareof is leSa1."
This section affords a defense to be tiaely inter- post&by the accused a:l$icable under the facts of the case, *3 honorable I). VV'. Eurkhalter, Page 3
end it is not skessary to be negativad in tha state's plead- WI* Absent evidence raising the issue, it is, of course, improper to ificlude it in tho Court’? charge0
Violetions of the Texas Liquor Control i&t cons-
titut'c? aiSCi6in6E0lOE3. Szct:.on 41 of the act provides the yen- alty for i11oga.j. transportation of liquor condomned by Section 4 (b), or ;,rticlo 666-4 (b) supra. (Vernon's Fenal Code, iirt. 666-41. ) :
In miadamaanor cases it is ~011 settled that all parties participati~~;in~,an.'offensa are principal offenders end may be prosacuted 3nd ~:unlsh=d as such. 'Therefore, the mere fact.that liquor baing transported does not belong to the perapn trans:jorting it cannot loGally affect his guilt or innocence or enable him to escape the penal consoquonces for such Qansportation, .
Yours very truly ATTCRNxY GENERA4 OF TEXAS ,
BlV:b
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