The offense is transporting intoxicating liquor; the punishment, confinement in the penitentiary for two years.
Officers were at a church where a number of negroes had congregated for the purpose of attending an entertainment. A trail led from the public road to the church. About 35 feet from the trail there was a fence. The officers stationed themselves near the fence. When they first saw appellant he was standing in the trail talking to somebody. They then observed appellant make three trips from the fence to the trail and back. On each of the occasions appellant would meet somebody on the trail. Finally, Hillis Allen came from the church and met appellant at the trail. From the point of their meeting appellant and Allen went to the fence. At this juncture the officers heard the rattling of bottles and observed appellant and Allen stooping over. Getting up, Allen and appellant walked from 15 to 25 feet away from the fence. The officers turned their flashlights on them, and, upon seeing appellant drop two pints of whisky on the ground, the officers took the parties into custody. They recovered the two pints of whisky appellant had dropped, and also four pints that Allen had thrown down. Going to the point near the fence where they had observed appellant and Allen, the officers discovered 23 pints and a half-gallon of whisky.
Appellant did not testify in his own behalf, and introduced no witnesses.
We are unable to sustain appellant's contention that the evidence is insufficient to support a conviction for transporting intoxicating liquor. The court charged on circumstantial evidence; and, in our opinion, the proof on the part of the State is sufficient to meet the test of exclusion. It is true that appellant was seen to move the whisky but a short distance. However, his act in carrying it part of the way on his journey was sufficient to satisfy the terms of the law defining transportation. Tullos v. State, 268 S.W. 174. The several trips appellant had made from the fence to the trail and his contact with parties coming up the trail indicated that the whisky was being transported from the fence for the purpose of delivery to said parties.
Appellant objected to the charge for its failure to define "transport." We are unable to discern how the failure to define *Page 122 the term could have injured appellant. That appellant transported the whisky a distance of from 15 to 25 feet was undisputed.
We are unable to reach the conclusion that the trial court should have instructed the jury to disregard the testimony of the officers as to the acts of Hillis Allen. Allen and appellant were together when caught in the act of transporting whisky.
We deem it unnecessary to discuss the bill of exception relating to the argument of the district attorney. We think the bill fails to reflect reversible error.
A careful examination of all of appellant's contentions leads us to the conclusion that reversible error is not presented.
The judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.