Conviction for transporting intoxicating liquor; punishment, one year in the penitentiary.
Officers in possession of information went to a certain point on a road out from Nacogdoches, and presently appellant and one Cortinas came along in a car. The officers stopped the car and one of them hailed the occupants. Appellant was driving the car, and as *Page 458 the officers walked up to it Cortinas broke a glass jug. This broken jug and another one full of whiskey were right in front of the driver's seat. The broken jug also had contained whiskey.
The record is without bills of exception. However appellant brings forward two complaints, based on his exceptions to the court's charge. One of said complaints is that the court did not charge affirmatively upon the defensive theory supported by the testimony of appellant. He claimed that he did not know that the whiskey in question was in the car, and that if same was in said car, it was in the control and possession of Cortinas. Appellant testified on the trial in line with this contention. He said that on the afternoon in question he had driven out to the home of the Cortinas family, and that while there he lent his car to George Cortinas who took same and went somewhere, appellant said he did not know where. When he returned appellant said he got into the car and Cortinas moved over and appellant took the wheel, and drove the car several miles and to the point where the officers stopped them and arrested them. He said he did not know there was any whiskey in the car until Cortinas broke the jug mentioned by the officers. It would appear useless for us to discuss the many authorities in this State holding that the defensive theory should be affirmatively presented. However, examining the court's charge in this case we find that the court told the jury as follows:
"Now, bearing in mind the foregoing rules of law, if you believe from the evidence, beyond a reasonable doubt, that the defendant, Lee Cassius, on or about the time alleged in the indictment, in the County of Nacogdoches and State of Texas, did then and there knowingly transport intoxicating liquor, you will find the defendant guilty and assess his punishment at confinement in the State Penitentiary for any term you see proper not less than one nor more than five years. If you do not so believe, or if you have a reasonable doubt thereof, you will find the defendant not guilty. Or if you believe the defendant did not know of the intoxicating liquor being in the car, or if you have a reasonable doubt thereof you will find him 'not guilty.' "
It is difficult for us to see just how the court could have more plainly or pointedly told the jury that if they believed appellant did not know intoxicating liquor was in the car, or if they had a reasonable doubt thereof, they should find him not guilty. It would not be necessary under any of the authorities in order to make out a case to show that appellant owned the whiskey in question, or that *Page 459 he had any pecuniary interest in it. It might have been entirely in the control and possession of Cortinas, but if appellant drove the car and knew the whiskey was in the car at the time he so transported it, he would be guilty under the law.
The other point insisted upon by appellant in his brief is that the court erred in failing to charge the jury the law of circumstantial evidence. We are unable to perceive anything in the facts of this case demanding such charge. Beyond any question appellant did drive the car in which the liquor was transported. This fact was established by direct testimony. The only remaining question was as to his knowledge, which was raised by his testimony, and was submitted to the jury in the charge. When the main facts making out an offense against the law are shown by direct testimony, and the only question left is one of intent, etc., the case is not one on circumstantial evidence. Charles v. State, 85 Tex.Crim. Rep.; Givens v. State, 98 Tex.Crim. Rep..
Being unable to agree with the contentions made by appellant, and finding no error in the record, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.