Appellant was convicted in the district court of McLennan County of transporting intoxicating liquor, and his punishment fixed at two years in the penitentiary.
The record discloses a case of conflicting facts, those for the State judges of the weight of the testimony and of the facts proven, and appellant combating said proposition. The jury are the exclusive having solved these issues adversely to appellant, we do not feel called on to disturb their verdict.
Able counsel for appellant moved to quash the indictment because it failed to allege that the liquor was transported for purposes of sale, and in his brief calls attention to the language in the caption of the act passed at the Called Session of the 37th Legislature, p. 233, — insisting that the expressions in the caption and the failure to incorporate same in the body of the law, either makes said law void or necessitates the reading into the law of the expression "Transport for the purposes of sale" found in the caption. We quote the caption:
"An Act to repeal Sec. 31 and to amend Sections 1 and 2 of Chapter 78 of the General Laws of the Second Called Session of the Thirty-sixth Legislature, and to add thereto Sec. 2a, 2b, 2c, 2d, and E, and to amend the caption to conform thereto, making it unlawful for any person directly or indirectly, to manufacture, sell, barter, exchange, transport, export, deliver, solicit, take orders for, or furnish spirituous, vinous or malt liquors, or medicated bitters capable of producing intoxication, or any other intoxicants whatever, or any equipment for making such liquors, or to possess or receive, for the purpose of sale any such liquors herein prohibited.
Declaring that it shall be unlawful for any person directly or indirectly to manufacture, sell, barter, exchange, transport, export, deliver, solicit, or take orders for, or furnish any spirituous, vinous or malt liquors, or medicated bitters, or any potable liquor, mixture, showing beyond any question the guilt of appellant; those for or preparation containing in excess of one per cent of alcohol, by volume, or any equipment for making any such liquors, or, to possess, receive, or transport for the purpose of sale any such liquors herein prohibited. Providing that it shall not be unlawful for any person to manufacture, sell, barter, exchange, transport, export, deliver solicit, take orders for, furnish, possess, or deliver spirituous, vinous, or malt liquors, or medicated bitters after permit has been duly authorized and given by the proper authorities, for medicinal, mechanical, scientific, or sacramental purposes. Providing further that the purchaser, transporter, or possessor of any of the liquors herein prohibited shall not be held in law or fact to be an accomplice. Providing further that no person over twenty-five years of age *Page 87 convicted under any of the provisions of this Act shall have the benefit of the Suspended Sentence Law, and declaring an emergency."
That part of said caption referred to and relied on by appellant will be found at the end of the first sentence of the second paragraph of said caption which, in so far as it refers to the transporting of such liquor, appears clearly to refer to liquor containing more than one per cent of alcohol by volume, which does not affect the offense of which appellant was convicted. We are not of opinion that in any event the insertion of the language upon which appellant bases his contention herein, would have any effect when the charge was the transportation of liquor described as intoxication. We pretermit any discussion of whether the point raised would be of effect if the indictment charged transportation of liquor containing more than one per cent of alcohol by volume. Such discussion here would be aside from any question actually before us, and would be but obiter dicta. Appellant cites the case of M. K. T. Ry. Co. v. Mahaffey, 105 Tex. 394, as supporting his contention, but an analysis of that opinion discloses nothing at variance with out conclusions as above stated. This being the only point relied upon by appellant, and being unable to agree with him, the judgment of the trial court will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.