The statement of facts now being before us, same will be considered with the record in disposing of the case.
According to the State's testimony, appellant had in his possession a pint bottle containing corn whiskey. He went to the toilet and placed the bottle in the bosom of his shirt. Upon coming out, he got into his automobile and rode some little distance about the town with the whiskey in his shirt bosom.
Evidence showing the liquid to be whiskey was given by the testimony of the officer that the liquid, after the bottle was broken, smelt like whiskey. Other witnesses testified to the contrary. We think the evidence is sufficient to show that the appellant was in possession of a bottle containing a pint or less of whiskey. There was no evidence, however, that his possession was unlawful or that he possessed it with any unlawful intent. Under the statute, he was *Page 246 permitted to possess that quantity of intoxicating liquor, and under a recent amendment to the statute, no inference of unlawful intent is drawn from the possession. It is believed by the writer that the facts do not bring the case within the purview of the statute forbidding one to transport intoxicating liquor. However, my associates are of the contrary opinion. This matter was discussed in the original, concurring and dissenting opinions in the case of Gandy v. State, No. 7579, to which reference is made.
The motion for rehearing is overruled.
Overruled.
ON SECOND MOTION FOR REHEARING.