Appellant was convicted in the District Court of Knox County of the offense of transporting intoxicating liquor, and his punishment fixed at one year in the penitentiary.
On the trial of this case, in addition to other testimony, the State used as a witness in its behalf one of the men who appears to have been engaged with appellant in the enterprise which the State asserts to have been that of transporting intoxicating liquor. Sec. 2c of Chapter 61, Acts First Called Session of Thirty-seventh Legislature, reads as follows:
"Upon a trial for a violation of any of the provisions of this Chapter, the purchaser, transporter, or possessor of any of the liquors prohibited herein shall not be held in law or in fact to be an accomplice, when a witness in any such trial."
Giving effect to the terms of this enactment, it would seem clear that the witness Sams would not be held in law or in fact to be an accomplice. From the testimony of Mr. Sams it is made to appear that on the 4th of July, 1922, witness and one Epley got with the appellant at a garage in Knox City. Witness was trying to get a cable to pull his car in and appellant told him that he had good rope down at his slaughter pen. The party went to the slaughter pen and appellant told witness that he ought to have something down there to drink. Appellant walked out about twenty yards and picked up a jar about three-fourths full of what looked like corn whisky and the party got into the car and went from the slaughter pen up to the elevator some three hundred yards carrying the whisky with them. At the elevator the party were surprised by Mr. Hardburger, the city marshal, who came upon them and took possession of the liquor, which at the time of Mr. Hardburger's appearance was being held by a man in the party of appellant by the name of Carter. Mr. Hardburger testified that the whisky in question was white corn whisky, and that this was in Knox County, Texas. These are the material facts given in testimony on behalf of the State. Appellant denied having told witness Sams that he thought he knew where they could get some whisky and denied producing same when they reached the slaughter pen, and also denied getting a fruit jar containing liquor and putting it in the car. Appellant denied knowing there was any liquor in the car or that he had anything to do with it, if it was there. *Page 8
In his charge to the jury the learned trial court erroneously informed them that the witness Sams was an accomplice and gave to the jury the usual charge on the necessity for the corroboration of the evidence of an accomplice in order to justify a conviction, notwithstanding which the jury found appellant guilty. In the charge we also find the following:
"You are instructed that if the whisky was owned by one or more of the defendant's companions and was under the control of the owner, and that defendant riding in the automobile exercised no control and had no physical possession of the whisky, he would not be guilty unless, he, by words or acts, encouraged the transportation of the whisky." This seems to us to present favorably to appellant the defensive theory in the case.
We do not think the trial court erred in refusing appellant's requested peremptory charge in his favor, nor that error appears in the court declining to instruct the jury that transport means to carry, to move from place to place. If the testimony of the State be believed by the jury, there could be no question of the fact that the liquor testified about was moved from place to place by the party in the car after appellant had produced same. We do not believe it any error to decline appellant's requested instruction that it was no offense to transport any liquid other than intoxicating liquor. This court is thoroughly committed to the proposition that it takes judicial notice of the fact that whisky is intoxicating liquor. There was no testimony in the case to refute that of Mr. Hardburger that the liquor found by him was whisky.
The trial court committed no error in submitting to the jury the law of principals. The car seemed to belong to a man by the name of Epley who was driving same. According to the State's theory appellant procured the liquor and placed it in the car, and the whole party went together in the car to the place where they were found by Mr. Hardburger. This would appear to present a state of facts upon which the court properly charged the law of principals.
Complaint is made that the district attorney in his closing argument to the jury said: "There are men going to the penitentiary for violating this law and others to go," and that this language was excepted to and the court asked to instruct the jury not to consider it. We are not led to believe that the statement was of any matter materially erroneous or hurtful to the appellant.
We are of opinion that the evidence was sufficient to justify the conclusion reached by the jury, and that none of the matters complained of present reversible error, and an affirmance is ordered.
Affirmed. *Page 9
ON REHEARING. November 14, 1923.