Appellant was convicted in the district court of Caldwell county of transporting intoxicating liquor, and his punishment fixed at one year in the penitentiary.
The State witnesses testified to facts which show that appellant was transporting a gallon of liquor on the occasion in question; that he brought it to a Mexican celebration and that he and some companions carried it off to a part of the grounds where they were found in possession of it. We think the court's definition of transportation was correct. There were three Mexicans going together from a point in the grounds where the celebration was in progress down to the point where the officers arrested the party. The name of one of the Mexicans was unknown to the State witnesses. Appellant testified in his own behalf that the whisky was brought to the place where the officers arrested the party by one Vicente Fonseca. The court charged in the usual form the law of principals. An exception directed at the charge upon the ground that there were no facts calling for same, is without merit.
The indictment contained two counts, one charging the transportation and the other possession for purposes of sale, of intoxicating liquor. Appellant complains because the court refused to compel the State to elect, and submitted both counts to the jury. There was no error in the action of the court. The two counts were inserted in the indictment to meet possible phases of the testimony on the trial. There was evidence tending to support each issue. The court properly submitted both counts. The verdict of the jury was confined to the count charging transportation, and the judgment and sentence followed the verdict. No error appears in this matter.
The complaint that there was no sufficient showing in the facts of a transportation of the liquor in question, seems to us without foundation; the same is true of the complaint of the submission to the jury of the issue of transportation.
There is complaint of the refusal of a special charge in which appellant asserts that he sought to have presented his theory of the defense. The trial court instructed the jury that if appellant transported the liquor he should be found guilty of this offense; that if he did not, or if the jury had a reasonable doubt of that fact, he *Page 13 should be acquitted. A special charge was prepared by appellant instructing the jury that the State must prove by competent testimony beyond a reasonable doubt that the accused did in fact transport intoxicating liquors as that term is defined, and that it was not a violation of the law for a person to intend or to have an intention to transport, intoxicating liquor. We think the appellant's theory of the case sufficiently safeguarded and presented by the charges given.
At the instance of appellant the court gave to the jury a special charge presenting the law of circumstantial evidence. Complaint is made in a bill of exceptions that in his argument to the jury the State's attorney insisted that the case did not rest wholly upon circumstantial evidence. Objection is made also that the court refused to give to the jury an additional charge instructing them, after the argument was over, that this was a case on circumstantial evidence. We do not deem the action of the trial court in refusing this request to be erroneous. The court gave the requested charge and told the jury that the case was one of circumstantial evidence. The only feature of the case which brought it within that rule was that the State witness testified that when he saw appellant going with the other Mexicans through the celebration grounds to the point where they were arrested, appellant was carrying a package about the size of a gallon jar of whisky, wrapped in a newspaper. The other two Mexicans with him had nothing in their hands. The officers followed the three men in the direction in which they were going and found them together with a newspaper wrapping lying on the ground and they had the gallon jar of whisky. It might be deemed doubtful as to whether the case was one on circumstantial evidence. We do not think the argument of the State's attorney of any material harm to appellant.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.