CONCURRING OPINION. The court so framed his charge that it authorized a conviction for the transportation of less than a quart of whiskey, and the contention is that the charge was erroneous because the evidence failed to show that the transportation was for the purpose of sale. The contention is based on an amendment to the prohibition laws passed by the 38th Legislature, 2d C. S., Chapter 22. The law as so amended, among other things, provided that it should be unlawful to "transport" intoxicating liquor; also that it should be unlawful to "possess" it for the purpose of sale, and further provided that when the proof showed possession of more than one quart of such liquor it should be prima facie evidence of guilt, that is, that such possession was for the purpose of sale, but that an accused should have the right to overcome such prima facie case by introducing evidence showing the legality of such possession; that is, if he could do so he might show that such possession was not for the purpose of sale although he had more than a quart. It naturally followed that if the proof only showed the possession of a quart or less no prima facie case for the offense of possessing it for the purpose of sale, was made out, and that before the state could secure a conviction under such cirsumstances it would be necessary to prove in some way that the possession of the quart or less was for the purpose of sale. Such is the construction such amended statute has received, this court also holding that to charge the offense of "possession" the indictment must allege that it was so possessed for the purpose of sale. (See Dossett v. State, 90 Tex.Crim. Rep., 235 S.W. 1093; Francis v. State, 90 Tex.Crim. Rep., 235 S.W. 580; Davis v. State, 90 Tex.Crim. Rep., 235 S.W. 1094; Meyer v. State, 91 Tex.Crim. Rep., 239 S.W. 949; Gilstrap v. State, 91 Tex.Crim. Rep., 239 S.W. 950; Newton v. State (decided October 8, 1924.)
Appellant's contention is that there can be no "transportation" without "possession," and that if the "transportation" and "possession" consist of but one criminal act, and the State could prosecute but once thereon and elects to prosecute for "transportation," and the facts show that the amount of liquor so transported be for only a quart or less, that this court should read into the statute denouncing transportation as a crime the provisions of the amendment of the 38th Legislature applying to "possession." The writer finds himself unable to agree to the soundness of the proposition. *Page 150
It must be borne in mind that the constitutional amendments and the laws passed thereunder both Federal and State, although couched in somewhat different language, was designed to prohibit the use of intoxicating liquor as a beverage. Carrying out this purpose the 36th Legislature (Chap. 78, p. 228, 1st and 2d C. S.), denounced as a crime the "transportation" and "possession" of any quantity of intoxicating liquor except as it might be so transported or possessed for medicinal, mechanical, scientific or sacramental purposes. The 37th Legislature (Chap. 61, p. 233, 1st and 2d C. S.) amended the Acts of the 36th Legislature in some particulars, still, however, denouncing as a crime the "transportation" of liquor, but making the "possession" thereof a crime only when possessed for the purpose of sale. The amendment of the 38th Legislature made no change in the offense of "transporting" although it had been the uniform announcement of this court that it was not necessary to charge in the indictment, nor to prove, that the transportation was for the purpose of sale. (See Crowley v. State, 92 Tex.Crim. Rep., 242 S.W. 472; Cecil v. State, 92 Tex.Crim. Rep., 243 S.W. 988; Copeland v. State,92 Tex. Crim. 554, 244 S.W. 818; Turner v. State,255 S.W. 439; Bailey v. State, 260 S.W. 1057.) The amendment of the 38th Legislature was adopted after our decision in the Copeland case (supra) in which we said:
"Appellant further urges that, since the amendment to the Dean Law above referred to authorizes and allows one to possess liquor if same be not so possessed for the purpose of sale, that the law should be construed to authorize and allow the manufacture, transportation, etc., of such liquor for any other purpose except that of sale. The Legislature makes the laws, and this court is not authorized to construe anything into them unless the language of such statute be ambiguous or so difficult of construction as that its meaning is not clear. We find nothing in the language of the amendment under discussion which lacks clarity. We cannot concern ourselves with any difficulties which may appear to surround the lawful possession of liquor, nor are we concerned as to how one may acquire the liquor whose possession for personal use seems to be allowed by said statute. We can go no farther than to say that said statute in clear and unmistakable terms forbids the manufacture, transportation, etc., of such liquor under pains and penalties."
This construction of the law is presumed to have been known to the Legislature and still it made no change in the liquor laws as they related to "transportation," but only changed the law as to "possession," making it a prima facie case of guilt of possession for the purpose of sale where the proof showed accused to have more than a quart. *Page 151
We are not unmindful of the obvious fact that where one is found in possession of only a quart or less of intoxicating liquor under circumstances where the state may prosecute either for "transportation" or "possession," but not for both, that the quantum of proof necessary to secure a conviction may vary depending upon which crime the state elects to prosecute. Although the prosecution for either would be based upon the same identical criminal act. This presents no anomaly in our law. Many illustrations could be given, one will suffice. A wilfully shoots B with a pistol which is being carried in violation of the law. The State proposes to proceed against A for the criminal act of shooting of B. It may elect to prosecute under Article 1024a P. C., which denounces as a crime the wilful assault upon one with a pistol the carrying of which is prohibited; on the other hand the State may elect to prosecute under Article 1026 P. C., which denounces as a crime an assault with intent to murder. In this case not only the quantum of proof but the character of it would vary and the penalty be different according to the State's election although the act of shooting B is the matter under investigation. If the prosecution be under Art. 1024a, the proof must be that the act of A was wilful and done with a pistol which was being unlawfully carried; if under Art. 1026, the proof must be that A intended to kill B and was actuated by malice.
The writer concludes that the amendment of the 38th Legislature making proof of possession of certain quantities of intoxicating liquor prima facie evidence of guilt or otherwise applies only to prosecutions for possessing such liquor for the purpose of sale, and has no application where the prosecution may be for "transporting" such liquor. If the law as written appears to the Legislature to be wrong there is where the correction must occur. This court has no authority to read into the law denouncing "transportation" a provision which the legislature restricted to "possession."
For the reasons given I concur with my Brother Lattimore in the affirmance of the judgment.
Affirmed.