Conviction is for the transportation of intoxicating liquor, punishment assessed being two years in the penitentiary.
Appellant sought to quash the indictment for its failure to allege that the transportation was for the "purpose of sale." This exact question has been settled against appellant's contention in Crowley v. State, 92 Tex.Crim. Rep., 242 S.W. Rep., 472; Stringer v. State, 92 Tex.Crim. Rep., 241 S.W. Rep., 159; Ex parte Mitchum, 91 Tex.Crim. Rep., 237 S.W. Rep., 936; Copeland v. State (not yet reported).
The sufficiency of the evidence to sustain the conviction is questioned. The city marshal saw appellant with two suit cases going towards a passenger coach which was standing on a side track. The officer immediately followed and within two or three minutes found only appellant and the newsboy in the coach. In the negro compartment he found two suit cases containing four gallons of whisky. No other suit cases were in the coach. Appellant denied ownership, also denied that he had carried the suit cases and placed them in the car. A single question of fact was thus presented to the jury, which they settled in favor of the State. It was within their province to accept either statement, and we would not be authorized to disturb the verdict. There was no error in refusing the requested instruction to acquit. The court properly declined to instruct the jury to return a verdict of not guilty if the liquor was found in the coach but "said whisky was not in the possession of defendant or anywhere near the defendant." Appellant might not have been in possession of the whisky when it was found, nor near thereto, and still have been guilty of transporting it.
Appellant requested a special charge to the effect that the jury should acquit if they believed, or entertained a reasonable doubt, that the suit cases containing the whisky were placed in the coach by some one *Page 152 other than accused. The contention is made that the failure to give such instruction was violative of the principle consistently recognized by this court that an accused is entitled to have his defense submitted in an affirmative way. We do not regard the refusal of the charge as an infringement upon the well established rule. No affirmative defense was presented by appellant. He simply denied the truth of the facts testified to by the State's witness. Under the facts of this case it occurs to us his defense was fully covered under the general charge of reasonable doubt and presumption of innocence.
The judgment is affirmed.
Affirmed.
ON REHEARING. December 20, 1922.