DISSENTING OPINION. That the State has power to forbid and penalize the possession or movement of intoxicating liquors in any quantity or in any manner is not questioned. That the Legislature may do so to any extent not obnoxious to Section 20, Article 16 of the State Constitution is conceded.
That it may not legalize that which the National Congress forbids does not imply that its prohibitory laws must be of the same scope or of the same nature as those of Congress. This was held in the decision of this court upholding the Act of the Legislature known as the Dean Law in these words: *Page 152
"The impotence of the State, in view of the Federal law, to render lawful the manufacture, sale, or transportation of a beverage containing more than one-half of one per cent of alcohol does not imply that the State, in the exercise of its judgment, could not elect to punish persons who dealt in intoxicants containing one per cent or more of alcohol. Its refusal to punish where the percentage of alcohol was less than one per cent would not obstruct or impede the right of the Federal government to do so under its own law. The prosecution by the State of those who disobeyed its mandate with reference to intoxicants containing one per cent or more of alcohol, would conduce to make effective the prohibition declared in the amendment to the National Constitution." (Ex parte Gilmore,88 Tex. Crim. 537.)
The question is not the power of the Legislature, but its intent in making use of the word "transport." Does one who not unlawfully has upon his person less than a quart of intoxicating liquor become a felon when in moving his person he incidentally changes the locality of the liquor? The precedents dealing directly with the term "transportation" as contained in the Federal statute and that of some of the states are opposed to such a construction. See Street v. Lincoln Safe Deposit Co., 254 U.S. Rep., 88; United States v. Gudger, 249 U.S. 373; Baldridge v. State, 194 P. 217; Noble v. People,180 P. 562; Rivard v. State, 202 S.W. Rep., 39; Voils v. Commonwealth, 219 S.W. Rep., 1079; State v. Munson, 206 P. 749.
Our statute does not define the offense of transporting liquor. It simply says that it shall be "unlawful to transport it." "Transport" signifies to carry or convey from one place, locality or country to another. Cyc. of Law Proc., Vol. 38, p. 946; Webster's Dictionary. Such is its literal meaning, broad enough to inhibit any character of conveyance or removal from one locality to another. That it was not intended that it be given this broad application is obvious when considered in the light of the Constitution and the legislative enactments in this State concerning intoxicating liquors. In the chapter in which the offense is denounced, there is contained a subdivision making certain exceptions to its operation. See Acts of 37th Leg., 2nd Called Sess., Chap. 61. It is a common experience to find it necessary to look beyond the literal definition of a statute to ascertain the true meaning in the light of the legislative intent. The case of Street v. Lincoln Safe Deposit Co., 254 U.S. 88; 65 Law Ed., 151, is an example. The Supreme Court of the United States was called upon to determine the meaning of certain provisions of the so-called Volstead Act in Congress (41 Stat., at L., Chap. 85), wherein the possession and transportation of intoxicating liquors were prohibited by Act of Congress except for certain purposes named therein. Certain intoxicating liquor belonging to Street was deposited in the safety vault of the Lincoln Safe Deposit Company. It was insisted that the Lincoln Safe Deposit *Page 153 Company was not an individual, and that the liquor was not for the personal use of the company and therefore was subject to confiscation. The Supreme Court held that though this was the letter, it was not the spirit of the law. The liquor was held by the Lincoln Safe Deposit Company for Street, the owner, and according to the admitted facts, it was intended for his own personal use. It was held, therefore, that it was not possessed in violation of the statute. The statute was quoted by the Court thus:
"It shall not be unlawful to possess liquors in one'sprivate dwelling while the same is occupied and used by him ashis dwelling only and such liquor need not be reported, provided such liquors are for use only for the personal consumption of the owner thereof and his family residing in such dwelling and of his bona fide guests when entertained by him therein."
Street owned intoxicating liquor which was intended solely for his use. This excerpt is from the opinion:
"The admission of fact under which this case is considered bring the liquors here involved precisely within these immunity provisions of Sec. 33, except that they are stored in a publicwarehouse instead of in a private dwelling. They are lawfully acquired and were intended for a lawful use, and thus the question is narrowed to whether such custody by the warehouse company as is shown by the admissions was forbidden by the act."
The court held that the possession was not unlawful and said further:
"That transportation of the liquors to the home of appellant, under the admitted circumstances, is not such as is prohibited by the section, is too apparent to justify a detailed consideration of the many provisions of the act inconsistent with a construction which would render such removal unlawful."
A statute in this State makes it unlawful to carry a pistol on or about the person, save under certain named circumstances and conditions. See Arts. 475 and 476 of the Penal Code. On many occasions, convictions have been had under Art. 475, supra, where the undisputed evidence showed that the accused was carrying a pistol on or about his person under conditions not enumerated in the exceptions named in Art. 476, supra. One of the earlier cases was Waddell v. State, 37 Texas Rep., 354, in which the evidence showed that Waddell purchased two pistols in the town of Crockett and carried them from the place of purchase to other places for the purpose of buying ammunition to fit the pistols. Other cases in point are Fitzgerald v. State, 52 Tex.Crim. Rep.; Britton v. State,57 Tex. Crim. 583; Roberts v. State, 60 Tex.Crim. Rep.; Decker v. State, 160 S.W. Rep., 1192; Morris v. State, 163 S.W. Rep., 709; Buckley v. State, 157 S.W. Rep., 765; Wilson v. State, 86 Tex. Crim. 356 *Page 154 ; Rosebud v. State, 87 Tex.Crim. Rep.; Gates v. State, 82 Tex.Crim. Rep.. In each of these cases, the accused was held not guilty of the offense denounced. The reasoning underlying these cases, as the writer understands it, is that the facts in each of them reveal no intent to carry a weapon contrary to the law, but merely to exercise a right essential to the enjoyment of the ownership and possession of the weapon which the law did not forbid; that is to say, it was not within the legislative intent to destroy the privilege of ownership and possession of weapons by an enactment so restrictive as to forbid their movement from one place to another for a lawful purpose.
Touching the matter in hand, as originally written, the statute prohibited both the transportation and possession of intoxicating liquor except for certain purposes named in the statute. See Chap. 78, Acts of the 36th Legislature. It was modified by an amendment so as to permit the possession of such liquor save for the purpose of sale. Chap. 61, Acts of 37th Legislature, 2nd Called Session. In a subsequent amendment, it is provided that in all cases where the possession of intoxicating liquor for the purpose of sale is made unlawful, proof of the possession of more than one quart of such liquors shall be prima facie evidence of guilt, which may be rebutted by evidence showing that the possession was not prohibited. See Acts of 38th Legislature, 2nd Called Session, Chapter 22, Sec. 2b. It necessarily follows that proof only of the possession of a quart or less of intoxicating liquor does not make a prima facie case of guilt. To give the statute an interpretation holding one guilty of a felony who possessed half a pint of intoxicating liquor with no intent to use it for an unlawful purpose, when in another statute he is given the express privilege of possessing it, would import to the word "transport," as used in the statute, an intent beyond the spirit of the law and foreign to the purpose of the law-makers. The giving of such a restrictive effect to the word "transport" considered in connection with the other statutes to which reference has been made, would offend against the rule of construction thus stated by a text-writer:
"Words or clauses may be enlarged or restricted to effectuate the intention or to harmonize them with other expressed provisions. Where general language construed in a broad sense would lead to absurdity it may be restrained. The particular inquiry is not what is the abstract force of the words or what they may comprehend, but in what sense they are intended to be used as they are found in the act. The sense in which they were intended to be used furnishes the rule of interpretation, and this is to be collated from the context; and a narrower or more extended meaning is to be given according to the intention thus indicated." (Lewis' Sutherland on Stat., Construction, Vol. 2, Sec. 376, p. 722.) *Page 155
It is not to be inferred that one may not be guilty of "transporting" by carrying liquor upon his person even though the quantity is less than a quart. It may in such a case be shown that he was making use of his privilege of possession to unlawfully transport it, but the mere act of possessing less than a quart of intoxicating liquor may be identical with that of carrying such quantity of liquor upon the person and there is no express language in the statute declaring that it shall not be carried on the person when not illegally possessed. Where the law expressly states that there is no unlawful intent coming from the possession of less than a quart of liquor, the inference should be, in the absence of proof to the contrary, in favor of innocence rather than of guilt. Under such circumstances, the implication would be one of lawful possession rather than unlawful transportation.
The judgment should be reversed and the cause remanded.