Insistence is made that the court committed reversible error in the following excerpt from the oral charge, to wit:
"Was he in the car while whisky was being transported with a knowledge of the fact that there was more than five gallons of whisky in the car. If he was in the car, and the car was moving, and he had knowledge of the fact that there was more than five gallons of whisky in the car, then he would be a party to the transportation of the whisky. He is connected with the transportation of the whisky if he rides in the car with the knowledge of the fact that there is five gallons or more of whisky in the car."
We are of the opinion that, as an abstract proposition of law, this part of the charge was error, and should not be allowed to stand; but in this case it cannot effect a reversal, for the reason that the evidence for the state, without conflict, discloses an active participation in the transportation of the liquor by the defendant, which fact is not denied by the defendant. In fact, he offers no testimony at all, and therefore, if the state had requested it in writing, the court could have given the general affirmative charge.
That being the case, the part of the oral charge above quoted is abstract, and cannot be made the basis for a reversal in this case.