(Concurring). — Granting that the indictment states a public offense, I think there is a total lack of evidence to sustain it. The evidence is to the effect that on the seventh day of December, 1915, the sheriff of Apache county and one of his deputies discovered the appellant and one Joe Espinoza just over the line in New Mexico driving an automobile with several cases of whisky in it in the direction of the Arizona line. The appellant admitted buying the whisky in New Mexico and a purpose to take it to his home at Springerville, Arizona. He was within 200 yards of the Arizona line when intercepted by the officers, and doubtless would have crossed into Arizona had he not been detected. There is, however, no evidence whatever of any act or thing done by him in Apache county, Arizona, connecting him with the transaction in New Mexico. It is not shown when he left Springerville for New Mexico, nor how he traveled. There is an absence of any evidence showing, or tending to show, that appellant while in Arizona even formed the idea of going to New Mexico, and returning to Arizona with a load of intoxicating liquors, much less that he did any act in Arizona referable to such a course of conduct.
The indictment charges that the appellant “did unlawfully and willfully attempt to transport, bring and carry into the county of Apache, state of Arizona, a large quantity or amount of alcoholic liquors,” etc. The evidence shows that he was not in Apache county, but in New Mexico, when the attempt alleged was made.
Beside, as a question of law, I do not think the allegations “to transport, bring and carry” import the same meaning as the word “introduce,” contained in the Constitution. Clearly it would be no violation of our Constitution for a public carrier “to transport, bring and carry” into Apache county, Arizona, intoxicating liquors in a continuous shipment from the state of New Mexico to the state of California. The word “introduce” as used in our Constitution means that the liquors are brought into the state for the purpose of commingling them with the other property of the state. But there is nothing in the indictment showing that the said liquors were attempted to be introduced into the state of Arizona from without the state, unless that meaning be attached to the expression in the indictment, “that the whisky *355so attempted to be introduced into the state of Arizona.” This expression affects to refer to some preceding allegation of the indictment showing the introduction of alcoholic beverages into the state from without. There is, however, no such preceding allegation. The words used in the indictment “to transport, bring and carry” might be construed as conveying the idea that the liquors were shipped into that county from any other county in the state, which, of course, would not be a crime under any law of the state. The new prohibition amendment, which will take effect upon the proclamation of the Governor of the state, denounces as a crime the shipping of liquors from one part of the state to another; but, until that goes into effect, it is no offense to transport or ship intoxicating liquors from one part of the state to another part of the state, or from one county to another county.
For these reasons, I am of the opinion that the indictment fails to state facts sufficient to constitute a public offense.