The offense is unlawful transportation of liquor and the punishment is two years in the penitentiary. *Page 600
The testimony is undisputed that appellant carried two suitcases containing whiskey from a train to an automobile thirty-four steps away and his defense was that at the time he transported said suitcases he did not know that they contained whiskey. In support of his defensive theory, the appellant testified positively that he didn't know that there was any whiskey in the baggage, never had any idea or thought that Brown, the party with whom he was driving in the automobile, was going up there to get whiskey off of the train and that he had no interest in any whiskey, did not go there with any intention of aiding Brown or anyone else in getting whiskey. He further testified that if there was any whiskey on the automobile seat he did not know anything about it, that it was not his whiskey, that he didn't take any whiskey on the way out there and didn't drink any whiskey.
In an attempt to present appellant's theory of the case, the learned trial judge charged the jury as follows:
"You are further instructed that if C. Tucker transported or assisted in the transportation of the whiskey introduced in evidence without knowledge on his part of the contents of the suitcases and handbags, then in so far as he is concerned, it would not be an unlawful transportation and if he unwittingly assisted in the transportation without knowing the contents thereof, then the possession of the liquor was in B. B. Axton and not Tucker and no presumption of the law would arise as against the said Tucker."
The defendant objected to the manner of the court's presentation of his defense and suggested in his objections that the court should charge the jury that if the defendant carried the suitcases from or about the train to the automobile that before he could be convicted that the jury must believe beyond a reasonable doubt that he knew that they contained whiskey, and if upon this point they had a reasonable doubt they should acquit the defendant. This was the only affirmative presentation of the theory of the defense and the charge was further objected to because nowhere in the same is the reasonable doubt given in connection with such defensive theory. The question here presented was decided in accordance with the appellant's contention in the cases of Jones v. State,257 S.W. 895, Garcia v. State, 273 S.W. 856. The principle involved in those cases is identical with that in the instant case. Also see Carrier v. State, 271 S.W. 383.
Appellant objected because the court instructed the jury that the possession of more than a quart of whiskey is prima facie *Page 601 evidence that the whiskey was for the purpose of sale but this presumption can be met and destroyed by evidence that there was no such purpose. Appellant specially criticizes the use of the word destroy in connection above used. While not a great deal of importance is attached to this, it might be objectionable. The views of this court as to a correct charge on this statute have been fully expressed in the following cases: Stoneham v. State, 268 S.W. 156; Newton v. State, 267 S.W. 272; Caldwell v. State, 273 S.W. 608. In view of another trial we think it proper to say that the language of the statute itself is appropriate in submitting this matter.
For the errors above mentioned, the judgment of the trial court is reversed and the cause remanded.
Reversed and remanded.
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.