It is urged that the indictment failing to allege that the transportation of the liquor was for the purpose of sale renders same bad under the amendment of the Thirty-seventh Legislature, 1st and 2d Called Sessions, Chapter 61, page 233. This contention has been settled against appellant in Stringer v. State,92 Tex. Crim. 46, 241 S.W. Rep., 159; Crowley v. State,92 Tex. Crim. 103, 242 S.W. Rep., 572; Cecil v. State. (No. 7403, opinion October 11, 1922); Johnson v. State, (No. 7071, opinion October 11, 1922); Copeland v. State, (No. 6994, opinion October 11, 1922).
It is seriously urged that our original opinion is wrong in holding there was no error in refusing appellant's special charge to the effect that unless there was corroboration of his extra-judicial verbal confession he should be acquitted, and that our opinion is in conflict with Dunlap v. State, 50 Tex. Crim. 504,98 S.W. 845. We have carefully examined the latter case. The charge was arson. The corpus delicti was, of course, the unlawful setting fire to the house. The opinion states:
"There is no evidence in the record that we have discovered showing appellant's guilty connection with the burning, except the statement from the witness Massey to the effect that appellant asked him not to tell on him, and the further fact that appellant had an insurance policy on some goods situated in the burned building, unless it be the still further fact that he lived in the little town and not far from the building. It is a rule of universal application that a party cannot be convicted alone upon his extrajudicial confession. In this case there is noevidence that appellant or anybody else set fire to the building,except as above stated."
We think that portion of the opinion italicised by us clearly shows the distinction between that and the instant case. Here thecorpus delicti was the illegal transportation of the whisky. This was established beyond question independent of the confession. Mr. Branch in his Ann. P.C., page 1049, states what we regard as the correct rule thus.
"An extrajudicial confession alone, without proof of the corpusdelicti, is insufficient to sustain a conviction." *Page 537
The cases collated under the statement support the rule. If there had been no proof of the transportation of whisky save the statement by appellant quoted in our original opinion then this case and Dunlap's (supra) would have presented the same question.
In regard to the complaint of the argument of the district attorney (quoted in opinion) being a reference to appellant's failure to testify, we observe that the trial judge in his qualification of the bill stated "that the record showed that A. Owing was present at the time the statement was made and heard it, if it was made. This argument was a comment upon defendant's failure to produce A. Owing." If Owing was present the record fails to show it and in this qualification the learned trial judge may have been in error, but the record does show, as we understand it, that Staton was present, Bowlin testified that Staton said to him, "You did not get this through, but understand, don't undertake that any more; if you do there will be serious trouble; the fact is that is not my whisky, I was paid $35 to haul that over there," whereupon appellant said said "By G__ it is my whisky and it is nobody's G__ d___ business if I can get through." The bill complaining of the argument does not show that Staton had been indicted for transporting the whisky. If not he was available to accused as a witness, and the argument complained of under such circumstances could not be said to necessarily have reference to accused's failure to testify.
After careful reconsideration we conclude appellant's motion for rehearing should be overruled.
Overruled.