The motion presented is denominated an application to file a second motion for rehearing. Technically it is such, but substantially, it is not. The case on the original hearing was not decided on its merits, because the clerk of the trial court had failed, without fault on the part of the appellant, to send up to this court the statement of facts. When the statement of facts was filed, the case was passed on. The particular question discussed in this opinion was not pertinently brought to the attention of the court.
Attention is drawn to paragraph 3 of the charge of the court, from which we copy
"You are instructed that by the word, 'transport,' as used in this charge, is meant to carry from one place to another. Now, if you believe beyond a reasonable doubt that the whiskey found by the officer in the defendant's car was brought to that place from some other place by the defendant, then such, in law, would be transporting intoxicating liquor."
This paragraph was assailed in the trial court as being upon the weight of the evidence in that it assumes that the appellant had whiskey in his car. It appears from the State's testimony that there was a bottle in the car of the appellant under circumstances indicating that it had been carried; that while an officer was searching the car without a warrant, the appellant broke the bottle. The officer stated that the bottle had corn whiskey in it. According to his testimony, the bottle was a patent medicine bottle. The contents was not tasted by the officer, but he smelled it and it had the odor of whiskey, that is, there was a remnant of about a spoonful in a part of the bottle after it was broken. The officer put his finger in this remnant and smelled it. He said, "That is the only way I have of judging it to be whiskey." Before the bottle was broken, it was a sixteen-ounce bottle about two-thirds full. The other witnesses testified in substance to the same effect as did the officer, both of them relying upon the odor in determining that the substance in the bottle *Page 247 was whisky. A witness for the appellant who saw the episode, went at once to the place where the bottle was broken, but did not smell anything. He was a couple of feet, he said, from the piece that was picked up by the officer, but he did not try to smell it. He did not detect any odor.
The opinion of the witnesses based upon the odor of the liquid was, we think, competent evidence. In other words, the statement of the officer that he was acquainted with the odor of whisky, that the liquid in question had such an odor, that in his judgment, it was whisky, was proper testimony to go before the jury. It was not conclusive, however, that the liquid was whisky; nor that it was intoxicating liquor. It is conceived that the article might have the odor of whisky and yet contain an amount of alcohol so small that it would not be classified as intoxicating liquor. Witnesses for the appellant raised an issue as to whether the substance had the odor of whisky. See Cathey v. State, 94 Tex.Crim. Rep.; Estel v. State, 91 Tex.Crim. Rep..
Under the facts of the present case, we are constrained to believe that the evidence was such as made it incumbent upon the court to so frame his charge that the jury would be called upon to determine whether the liquid possessed by the appellant was whisky, and that inasmuch as the charge given assumes that the liquid was whisky, it was amenable to the objection made, namely, that it was upon the weight of the evidence and should have been amended. See Webb v. State, 8 Texas Crim. App., 115; Jones v. State, 70 Tex.Crim. Rep.; Vernon's Texas Crim. Stat., Vol. 2, p. 466, note 89.
The motion for rehearing is granted, the affirmance heretofore rendered is set aside, the judgment is reversed and the cause remanded.
Reversed and remanded.