Appellant vigorously assails our conclusion that the case was not one wholly dependent upon circumstantial evidence, or if of such character, that the facts and circumstances placed him in such "juxtaposition to the main fact" as that the failure to give a charge on circumstantial evidence was not calculated to injure his rights.
By the terms of Art. 743 of our C.C.P. we are forbidden to reverse causes for errors or omissions in the charge unless same were calculated to injure the rights of the accused.
That appellant transported the liquor in question seems proven by direct evidence beyond question. It was in his wagon. He was driving the wagon. The larger quantity of whisky was tied to or suspended from the springs of the seat on which he sat to drive the wagon. Part of it was on said spring seat under a quilt. What is transportation? *Page 647 A carrying from one place to another. That appellant did this before and after the flight of the party whom he now seeks to show to have been the possessor, is unquestioned.
In Beason v. State, 43 Tex.Crim. Rep., appears the following:
"Therefore it is clear that, where the act constituting the main essential fact of a crime is testified to by direct evidence, it is not a case of circumstantial. . . . What is the main fact or the act of a crime in a case of burglary? In murder it is the fact of the homicide; in theft it is the act of the taking; in burglary it is not the intent with which it is committed. . . . The main essential fact of burglary is the breaking and entering of the house."
In Holland v. State, 45 Tex.Crim. Rep., the accused was found in a room which had been left closed, and testified that he was looking for a toilet and came to the door of this room, which he said he found partly open and he entered thinking it a toilet, and had hardly gotten in before the lady came, saw him in there and screamed. It was held no error for the court upon these facts to refuse to charge on circumstantial evidence.
On the other phase of the case, in Baldwin v. State,31 Tex. Crim. 589, certain missing hogs were tracked a short distance from where they were taken and were discovered in possession of the accused and his brother who were driving them, and drove them home and butchered them. Judge Davidson for this court says:
"While no witness saw defendant actually take possession of the hogs, yet the criminative circumstances are in such `juxtaposition to the main fact' that the omission to give the charge (on circumstantial evidence) was not calculated to injure defendant's rights."
Other authorities on the question of juxtaposition are collated in Cabrera v. State, 56 Tex.Crim. Rep..
Not being led to change our opinion upon the proposition that the case was not on circumstantial evidence, or that in any event it was one in which there was such juxtaposition shown on the part of appellant as to make the omission of the charge on circumstantial evidence of no injury to him, the motion for rehearing will be overruled.
Overruled. *Page 648