The facts of this case are short and without contradiction. Appellant and one Ball were in a car. At some distance in front of them, but how far is not shown, was another car going in the same direction as the car of appellant. The two cars were met by an officer who testified that he got to the cars within "a minute or two" from the time he sighted them. Both cars had stopped. The man in the front car was down on his knees looking under his car when the officer drove up. The man said his radiator was leaking. No one else was out on the ground. The appellant and Ball were in their car. Not a word of testimony suggested that anyone was moving anything from one car to the other. The officer said there were two cases of whisky in the back of appellant's car, one of them full and the other not full. Appellant did not testify but introduced a doctor who testified that the wife of appellant was using whisky upon his advice for various ailments. Said wife also swore that she used whisky for medicinal purposes on the advice of a doctor. The court submitted to the jury the defensive theory that if appellant had the whisky or was transporting it for medicinal use for his wife, the jury should acquit.
On this rehearing the only contention is that the court erred in refusing to submit to the jury the theory that the whisky was placed in the car of appellant after it stopped and before the officer got there, and that there was, if this be true, no transportation. We might add that the man in the car with appellant testified and did not make any sort of claim that the whisky was put in the car while it was stopped at said place. He said their car had been stopped about a minute when the officer came up.
It is a well-settled principle of law that the charge need not submit to the jury issues not supported by testimony. Smith v. State, 79 Tex.Crim. Rep., 185 S.W. 576; Stephens v. State, 80 Tex.Crim. Rep., 188 S.W. 976; Merritt v. State, 85 Tex.Crim. Rep., 213 S.W. 941; Green v. State, 84 Tex.Crim. Rep., *Page 164 205 S.W. 988; Barrett v. State, 86 Tex.Crim. Rep.,215 S.W. 858; Rodriguez v. State, 89 Tex.Crim. Rep.,232 S.W. 512; Grissom v. State, 87 Tex.Crim. Rep.,222 S.W. 237; Bohne v. State, 98 Tex.Crim. Rep. 265 S.W. 1031. There was no error committed by the trial court in failing or in refusing to submit the issue referred to. There was no evidence calling for its submission.
The motion for rehearing will be overruled.
Overruled.