It will not be necessary to discuss further the matters treated in the original opinion. The discussion must be considered in accord with previous holdings of this court.
In his motion for rehearing appellant makes the contention that there is fundamental error in the court's charge in that he did not submit to the jury, for its finding, the question of fact as to whether or not the transporting of the liquor was proven as alleged in the complaint and information — that is, on Avenue G in Lubbock and on June 23rd, 1945.
It is necessary for the State to prove, under the allegations found in the record, that the whisky was transported on Avenue G, a public street in the City of Lubbock, as well as a date within the period of time provided by law. This proof was made.
In presenting his argument that it was not submitted to the jury, consideration is given only to Section 3 of the court's charge. We think that Section 2, which must be considered, clearly complies with the law and meets the contention presented. In Section 2 the court says " * * * if, after having heard all of the testimony there remains a reasonable doubt in your mind that the defendant, Harold Long, did on or about the 23rd day of June, 1945, transport an alcoholic beverage containing alcohol in excess of four per cent by weight, to-wit, whisky, in a dry area in an automobile on a public street, to-wit, Avenue G, City of Lubbock, in Lubbock County, Texas, there situate, it will be your duty as jurors to find the defendant not guilty and so say by your verdict."
Thus it will be observed that the jury was instructed specifically to acquit the defendant unless they should find the facts just as they were alleged in the complaint and information. A verdict of guilty constituted a finding in accord with the allegations in the information.
In Section 3 of the charge the court instructed the jury as to the penalty which they were authorized to assess in case they found beyond a reasonable doubt that Harold Long did transport whisky "in Lubbock County, Texas." The form of this charge is not commended. Nevertheless, we see no reasonable *Page 488 ground for concluding that it confused the jury. They were directed, under Section 2, to find him "not guilty" unless they believed beyond a reasonable doubt that he did the things alleged against him. The entire charge must be considered in construing any part of it. In our opinion this was sufficient.
The appellant's motion for rehearing is overruled.