Appellant was indicted, tried and convicted in the Eighty-seventh District Court of Limestone County for unlawfully transporting spirituous liquors and his punishment assessed at one year in the penitentiary.
Complaint is made by appellant to the refusal of the trial court to sustain his motion to quash the indictment, alleging that said indictment is insufficient to apprise the defendant of the nature and cause of the accusation against him and because the same is insufficient to base a successful plea of judgment of former acquittal or conviction in bar of a subsequent prosecution for the same offense. The indictment in the case follows the statute, and we are unable to agree with the contentions made by the appellant in this case to the effect that the State under the statute would have to allege with certainly at what particular place the defendant was charged with transporting whisky and in what particular way he was transporting same. in order to comply with the requirements of the law. This court has decided against appellant on this contention. Maynard v. State, 93 Tex.Crim. Rep.,249 S.W. 473.
Appellant complains of the action of the trial court in permitting the officers Marvin Wooton, Jose Popejoy and John McBay to testify to having arrested the appellant in a car with three or four other negroes within about one hundred feet of a house where a negro festival was in progress and that said officers at said time arrested forty-four other negroes at said house, and that the negroes at said festival were shooting dice and had whiskey there. The evidence in the record discloses that the defendant, together with about four other negroes, was in an automobile within about one hundred feet of the house where the festival was in progress when the officers arrested them and searched the car, in which they found two gallons of whiskey in fruit jars and some small empty bottles. This evidence was undisputed, the defendant admitting that he had the whiskey, but contending that he found it, before reaching the supper, at or near an old house and by the side of the road and that he was taking it home for medicinal purposes, to be used by his sick wife. The State contended in this instance that he was transporting said whiskey *Page 311 in violation of the law, and the sole defense was that he was transporting the whiskey for medicinal purposes. Now, in view of the testimony as we see it from the record, the defendant having the whiskey, within one hundred feet of where the festival was going on, and the evidence disclosing that there was whiskey at the festival other than that which the defendant had in the car, and that there were empty bottles found in the car that the defendant was riding in, it would at least be a circumstance to show in behalf of the State that the defendant had the whiskey in he car for the purpose of sale, and a circumstance to show in behalf of the State that he had either gotten the whiskey from the festival and did not find it as contended by him, or that he was carrying the whiskey to the festival and not to his wife; and we take it that the objection raised would go more to the weight of the testimony than to the admissibility of same in regard to the whiskey, and see no error in the ruling of the trial court. Land v. State,93 Tex. Crim. 470.
Upon the other hand, with reference to the objection as to gambling going on at the festival, it presents a more serious question for our consideration. We are unable to see from any standpoint how the testimony of the State's witnesses to the effect that the other negroes or parties at the festival were shooting dice would throw any light whatever on the issue as to whether the defendant was unlawfully transporting whiskey. However, it was an undisputed fact by both the State and the defendant that he was transporting the whiskey in question, and the only issue between the State and the defendant was as to whether it was an unlawful transportation or whether the defendant was transporting same for medicinal purposes, and the admission of the testimony in regard to the gambling, though error, in our judgment is harmless, because there was no contention by either side that the defendant was in any way connected with the gambling; and, the jury having given the defendant the lowest punishment, and the court having charged the jury affirmatively on the defendant's defense as to transporting for medicinal purposes, we are of the opinion that the admission of said testimony does not constitute reversible error as shown from the record in this case.
There is further complaint raised against the charge of the court because the court limited the transportation of the whiskey to medicinal purposes, while attorneys for appellant contend that it is too restrictive and that the court's charge should have embraced all of the exceptions named in the statute, including sacramental and mechanical purposes, etc. We are unable to agree to this contention, because there was no issue in the case that the defendant was transporting for any other than medicinal purposes, and we think the court properly applied the law to the facts by covering that issue of the case only. *Page 312
After a careful examination of the entire record, we fail to find any reversible error in the trial court, and the judgment is accordingly affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.