Billing v. State

BERRY, J. Appellant was convicted in the district court of Fisher county for the offense of transporting spirituous, vinous, and malt liquors and medicated bitters capable of producing intoxication, and his punishment assessed at confinement in' the penitentiary for a term of three years. The state’s testimony shows that appellant was driving along a highway in Fisher county in his automobile; that he was arrested, and in the car were found 16 half-gallon fruit jar's containing corn whisky. In company with appellant were his wife’s sister, Mrs. Hodge, and an unknown man known as Martin. Appellant testified that Martin put the whisky in his car without his knowledge or consent. Defendant makes the contention that, as the indictment charged transportation of spirituous, vinous, and malt liquors and medicated bitters capable of producing intoxication, and as the proof shows that the concoction in appellant’s car was whisky, there .is a fatal variance .between the allegations and proof. This contention is not sound. Whisky is a spirituous liquor. Hendley v. State, 94 Tex. Cr. R. 40, 250 S. W. 174; Cotton v. State, 94 Tex. Cr. R. 391, 250 S. W. 1026; Aston v. State (Tex. Cr. App.) 49 S. W. 385; Douthitt v. State (Tex. Cr. App.) 61 S. W. 404. A charge on circumstantial evidence was not required in this case. Appellant was •admittedly transporting liquor in his own automobile, and no case has been cited — and, indeed, none are in existence in this state— where a charge on circumstantial evidence is required in a case of similar facts. By bill of exception No. 2 appellant contends that, as the allegations that appellant transported spirituous, vinous, and malt [608] liquors and medicated bitters capable of producing intoxication were pleaded conjunc-tively, it was incumbent upon tbe state to prove each of said allegations in order to sustain a conviction, and, as tbe testimony shows only tbe transportation of whisfcy, tbe state bas not discharged the burden of also proving that be transported vinous and malt liquors and medicated bitters capable of producing intoxication. Under tbe allegations in this indictment, proof of tbe transporting of either spirituous, vinous, or malt liquors or medicated bitters capable of producing intoxication was entirely sufficient. No ease bolding tbe contrary' doctrine hás been cited or found. What has already been said with' reference to bill No. 2 also disposes of appellant’s contention as raised by bills 4 and 5. Paragraphs 4 and 6 of the court’s charge fully protected appellant «against any possible error with reference to tbe charge on the burden of proof. Ein&ing no reversible error in tbe record, it is our opinion that tbe case should be affirmed. PER CURIAM. Tbe foregoing opinion of tbe Commission of Appeals has been examined by tbe judges of tbe Court of Criminal Appeals and approved by tbe court.