The allegation as to the character of liquor transported by appellant appears from the indictment to be that it was "whisky and intoxicating liquor." This was sufficient. The proof showed whisky and that in the opinion of an experienced witness same contained eighty per cent alcohol. This sufficiently met the allegation as to the character of said liquor. The undisputed proof showed the transportation by appellant in his car of eight gallons of whisky from Canyon in Randall County to the point of arrest near Amarillo in Potter County. This sufficiently made out transportation. Liquor taken from appellant's car was properly admitted in evidence, though the officers had no search warrant. Welchek v. State, opinion recently handed down. Submission of the issue as to *Page 264 the acquisition of the liquor by appellant prior to the adoption of the Dean Law, was not called for by any evidence adduced.
Following a question asked Mr. Foster: "Well was he sick, Mr. Foster?" appellant's bill of exceptions No. 23 sets out a discussion of the law applicable to certain facts, followed by the statement by appellant's counsel of the withdrawal of the question if the court thought it immaterial. The court said he did so think. Appellant's counsel then said he thought the other question immaterial. The court replied that he asked the question in order to find out. Appellant's counsel then said he thought both questions immaterial. At this point another of appellant's counsel made the following statement:
"Your Honor, we are not so sure about that as a matter of law, and we want to take a bill of exception to the courts's statement, which, I understand to be, in substance, if he had it to give to somebody else for medicinal purposes it would be no defense, or if he transported it to somebody else it would be no defense. If there is any error in my statement of the bill, I would like to have it corrected now.
"The Court: Allright.
"Mr. Guleke: Defendant excepts to the ruling of the court and we object further because it is a comment on the weight of the evidence."
We quote this statement of the ground of appellant's objection in order to make it plain that there was no sufficient complaint of any comment by the trial court on the weight of any evidence then accepted or rejected. Said bill of exceptions nowhere states any evidence relative to which any comment of the court might be pertinent. Appellant contends that the court should have submitted the question of his right to transport liquor for purposes of sale to a drug company in Amarillo. We have carefully examined the record and find ourselves unable to detect any evidence raising the issue. The druggist testified that he had never bought any liquor from appellant and that he made no engagement or contract to buy any on this occasion, nor was anything said between them of any purchase. The conversation had over the telephone between appellant and said druggist seems only to reflect the fact that appellant desired a place to sleep after reaching Amarillo on the night in question. Appellant also complains of certain remarks of the trial court to the effect that when insanity was an issue in a case, that the point involved was the knowledge of the accused of the right or wrong of the particular transaction charged. We are unable to conclude this a comment on the weight of any testimony then before the court. A witness had been asked if he thought appellant's mind to be unsound and had testified that he did. This testimony remained for the consideration of the jury, and the statement by the court apparently was of a correct principle of law and seems to have been intended merely as an announcement *Page 265 of the court's conclusion as to what should be shown by proof in the case.
Finding no error in the record, appellant's motion for rehearing will be overruled.
Overruled.