The complaint charged appellant with transporting whisky "upon a public highway." On motion for rehearing, our attention has been directed to the fact that there is no proof in the case that appellant travelled upon a public highway. In fact, no reference is made to a road, street, or alley. Whatever construction it might be necessary to give to the statute as quoted in the original opinion, the quotation from the complaint is one of the essential averments. Inasmuch as it is necessary to allege it, the State also had the burden to prove it. In the absence of such proof, it becomes the duty of this court to grant the motion.
It is strenuously insisted that the statute does not apply to a carrier and that the prosecution will not lie as against this appellant. The facts show that he was acting with Jess Brewster, the owner of the whisky; that he helped him load it in his car; that he drank part of it and that he became a party in the crime with Jess Brewster as fully and completely as if he were a partner in the ownership.
The motion for rehearing is granted, the judgment of the trial court is reversed, and the cause remanded. *Page 316