Conviction in Criminal District Court of Travis county of transportation of intoxicating liquor; punishment fixed at one year in the penitentiary.
There is but one bill of exceptions in this record, and same complains of the refusal of the court to give a peremptory instruction of not guilty. We are not in accord with the contention thus set forth.
According to the state's testimony appellant was seen to walk out of the back door of what is known as the Dixie Cafe in Austin and from thence across the back yard of said cafe and to deposit two bottles of whiskey in a box. He then walked a little way in a different direction and handed a bottle of said liquor to one Cunningham. Testifying in his own behalf, appellant denied having any whiskey and stated that his car was parked near said cafe and that he and one Davis were walking around, and that said Cunningham asked them if they wanted a drink and that he replied that he did and went back through the cafe to the back yard, and in a short time Cunningham *Page 630 and Davis came back there and that Cunningham took out a bottle of liquor and before he, appellant, ever took the same in his hand the officer arrested them.
In order to constitute the offense of transportation it is not necessary that the testimony show all of the distance traveled or all the way the liquor is transported. Tullos v. State, 99 Tex.Crim. Rep.. Nor is it necessary that the testimony show a completed journey. Lamb v. State,95 Tex. Crim. 475; Lee v. State, 95 Tex.Crim. Rep.; Hill v. State, 96 Tex.Crim. Rep.. In the case of West v. State. 93 Tex.Crim. Rep., and Warren v. State, 94 Tex. Crim. 243, no such facts are presented as appear in the instant record. When the most that can be concluded as to the connection of the accused with the liquor is that he picked it up and moved it a few feet, and no inference can be indulged that this is the beginning or end of what is deemed transportation, this may be doubted as sufficient testimony to support the conviction of tranpsortation. This is the character of case made out in the West and Warren cases, supra. No such claim appears in this case. The movements of appellant as sworn to by him were such as that if the jury believed he had the liquor when he walked back through the restaurant and out to where the officer saw him put the liquor down, it would be unquestionably a case of transportation.
Being unable to agree with the contention made in appellant's requested instruction, and being further of opinion that the evidence supports the jury's conclusion, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.