By some means that which constituted the defensive issue in this case, and presenting which a special charge was asked in the trial court, and for failure to present which an exception was taken to the charge of the court below, escaped our attention upon the original consideration of this case, and must have escaped that of the usually very careful trial judge.
The defensive theory referred to was that if any liquor at all was carried from one place to another in the car occupied by appellant and others on the day in question, said liquid was water and was not whisky. It appears from the testimony of the officer who arrested appellant, that he came upon the party at an elevator and found them there in possession of some whisky. It seems that the officer had been watching said parties before and saw four of them drive down a road which went by the elevator in question. The officer went and got his horse and rode out in the direction taken by said parties. About the time he reached the elevator he saw the party in the car coming back, saw them drive up to the elevator near an engine room. When he got to them appellant was standing by the car, and in the engine room he found a Mr. Carter in possession of a fruit jar of whisky, and a Mr. Sams holding a bottle, and also a Mr. Epley in there with them. The officer took charge of the whisky and some of the party. Witness Sams testified for the State that on said occasion the party at the elevator had what was supposed to be corn whisky. This witness stated on the occasion when they were discovered by the officer that they had been to a well and that this appellant left the car and went out about twenty yards and picked up a jar about three-fourths full of what looked like corn whisky, and that they could not find anything to dilute it with, so they went up to the elevator where they were doing what they could to get it in shape to take a drink when the officer came up. He said they carried the whisky from the well up to the elevator about three hundred yards.
For the defense appellant and a man named Carter, who was in the party, testified that when they went from town down to the well, they carried nothing at all but that at the well they got some water in a fruit jar and carried it back up to the elevator where they knew some corn whisky would be found; that this corn whisky was in a fruit jar in the engine room, and that when he and two others of the party got out of the car at the elevator they went into the engine room, took up the fruit jar containing the whisky and were in the act of trying to mix some of it with the water which they had brought from the well when the officer appeared and confiscated the liquor. Appellant and his witness both denied the transportation of anything on *Page 10 said occasion except the water from the well to the gin house. We quoted in our original opinion a part of the charge of the learned trial court to which an exception was taken at the time of trial upon the ground that it was on the weight of the evidence and invaded the province of the jury, and that same ignored the defensive theory in the case and failed to present it, and also that said charge ignored the appellant's explanation of what was claimed to be his transportation of whisky. Appellant also presented to the court the following special charge:
"You are instructed that the indictment in this case charges the transportation of intoxicating liquors, and that it is no offense to transport any other liquid than intoxicating liquors, and unless you find beyond a reasonable doubt that the defendant transported intoxicating liquors, you will acquit the defendant, or if you have a reasonable doubt as to whether defendant transported intoxicating liquors, or some other liquid, which other liquid was not intoxicating you will give the defendant the benefit of the doubt, and acquit the defendant, and say by your verdict not guilty."
It thus appearing that the contention of appellant and his witness being that there was no whisky transported from the well to the elevator but that the liquid so transported was water, it appears that that portion of the main charge complained of is subject to the objection made thereto, and that an instruction to the jury that "if the whisky was owned by one or more of the defendant's companions and was under the control of the owner, and that defendant riding in the automobile exercised no control and had no physical possession of the whisky, he would not be guilty unless he, by words or acts encouraged the transportation of the whisky," would be in effect an assumption on the part of the trial judge that the article transported from the well to the elevator was whisky, and said charge would thus be open to the criticism that it was on the weight of the evidence. The special charge above referred to, in the absence of any affirmative presentation of the defendant's theory of the case in the main charge, should have been given.
Having become convinced that we were in error in our former opinion, same will be set aside and the judgment of the trial court will be reversed and the cause remanded.
Reversed and remanded. *Page 11