LATTIMORE, Judge.
From a conviction of transporting intoxicating liquor, with punishment assessed at two years in the penitentiary, this appeal is brought.
The indictment sufficiently charged the offense. The State’s case showed that appellant was in the town of Milano, in Milam County, on Saturday, August 5, 1922. He lived six or seven miles away in the Hanover community and left. Milano on horseback going towards his home late in the afternoon. For reasons not set out in the record, two officers that night went out to a point on the Milano-Hanover road about a quarter of a mile from Milano and secreted themselves. About 9 o’clock that night appellant with his son came from the direction of his home along the public road in a car whose lights were turned off. It was a bright moonlight night. According to the State witnesses when appellant came to a point close to a culvert and not far from the witnesses, he flashed his light and then turned same off again, got out of his car, took a package about the size of a fruit jar wrapped in paper, walked to the end of the culvert and stooped down and put the package in. The officers came up at this juncture and arrested him and upon search found in the end of the culvert a half gallon fruit jar of whiskey and also found in appellant’s pocket a half pint flash of the same liquid. Appellant claimed that he had brought the half gallon of whiskey from a negro in Milano that afternoon who had agreed to leave same in said culvert for him, and he denied having put the package containing the liquor in the culvert but said he was in the act of taking it out when the officers came up. He also stated that the negro gave him the half pint of whiskey in Milano that afternoon, and there seems no dispute of the fact that, if this was so, appellant had conveyed this quantity of liquor about six or seven miles along the public road to his home and back. On the trial appellant exhibited the following document:
“This is to certify that Mr. A. Gandy has had the flue and I recommend that he should use strychnine or whisky as a stimulant for his heart.
“F. E. Fiddeul, M. D.
March 5, 1922.”
This he said he kept in his pocket. Asked if he had had it filled as a prescription, he said he had not; that he never bought any whisky on it or strychnine. Asked if at the time of trial in September he had bought any whisky on it, he said no, — he guessed he could make out without it. Asked what use he ,had for the document above quoted, he said in case he was caught with whisky on him he could show he had a right to it because “he told me to drink it for my health.” That the above document was not a prescription is plain; that the. whole scheme was to aid appellant to escape the consequence of connection
with illicit liquor transactions, is strongly suggested. However, the trial judge charged the jury as follows:
“If you believe from the evidence that the defendant transported intoxicating liquor along the public road from Hanover to Milano on or about the 5th day of August, 1922, as alleged in the indictment read to you, yet if' jmu find and believe from the evidence that the defendant transported said liquor, if any, only for medicinal purposes for himself, then you will return a verdict of not guilty.
“If you should find from the evidence that the defendant transported' the half pint of whisky exhibited in evidence before you for medicinal purposes only for himself, you will acquit him as to that phase of the case.”
Also in that part of the charge applying the law to the facts of the case the court told the jury that before they could convict they must believe beyond a reasonable doubt that the liquor in question was not transported for medicinal purposes for the defendant.
There are two bills of exception in the record by one of which complaint is evidenced of questions to the appellant while a witness as to how often he had gone to the various towns in Milam County. This presents no’ error. In the other bill complaint is made of a remark of the county attorney during his examination of appellant as a witness. There was no request for an instruction that the jury should not consider the remark and the explanation of the court makes it. appear that the remark was entirely harmless.
Appellant asked two special charges which were refused, — one a peremptory instruction of not guilty, — the other a charge that unless the liquor was transported for purposes of sale the jury should acquit. Both were properly refused. Another special charge was asked applying the law of circumstantial evidence to the whole case as made by the proof, which was also refused. There being a dispute over the fact as to whether appellant had transported the half gallon of whisky, and the State’s case, if dependent upon the transportation of such liquor being made out by circumstantial evidence, there was no error in the trial court giving the jury the law of circumstantial evidence as applicable to the transportation of said half gallon of liquor, but there be-in a direct admission on the part of appellant that he had transported the half pint of whisky, the requested charge applying the law of circumstantial evidence to the entire case was properly declined.
The question of transportation for medicinal purposes was fully submitted as above indicated, and by the jury decided adversely to appellant, and there is ample evidence to justify such conclusion.
The only exception to the charge deemed of sufficient importance to call for any discussion is as follows:
“Because the court erred in presenting that part of the charge to the jury wherein it is stated that the State relied on circumstantial evidence
as to the one-half gallon of liquor alleged to have been transported by the defendant, and that the defendant should be acquitted if the jury should find that the defendant transported one-half pint of whisky, as follows:
“1. Because said charge is misleading and calculated to confuse the jury.
“2. Because said charge is on the weight of the evidence.”
It is difficult to know what is meant by this. The court below, as above stated, charged the jury as to the transportation of the half gallon of liquor that it was a case of circumstantial evidence and gave the usual charge in such case, and beyond doubt if the offense was made out by the transportation of the half pint of liquor, then the case was not one of circumstantial evidence and there is nothing in the exception. Appellant contends that the Legislature having given him the right to possess intoxicating liquor for purposes other than sale, he would have the right to accept the bottle which he says was given him by the bootlegger who sold him the half gallon, and to carry it about his person. This is not the law, and without discussing the probability that the jury accepted none of appellant’s claims but believed that he had gone home that afternoon, gotten all the liquor found on him and brought it back to the place of arrest, — our view of appellant’s contention is presented.
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LATTIMORE, Judge.
From a conviction of transporting intoxicating liquor, with punishment assessed at two years in the penitentiary, this appeal is brought.
The indictment sufficiently charged the offense. The State’s case showed that appellant was in the town of Milano, in Milam County, on Saturday, August 5, 1922. He lived six or seven miles away in the Hanover community and left. Milano on horseback going towards his home late in the afternoon. For reasons not set out in the record, two officers that night went out to a point on the Milano-Hanover road about a quarter of a mile from Milano and secreted themselves. About 9 o’clock that night appellant with his son came from the direction of his home along the public road in a car whose lights were turned off. It was a bright moonlight night. According to the State witnesses when appellant came to a point close to a culvert and not far from the witnesses, he flashed his light and then turned same off again, got out of his car, took a package about the size of a fruit jar wrapped in paper, walked to the end of the culvert and stooped down and put the package in. The officers came up at this juncture and arrested him and upon search found in the end of the culvert a half gallon fruit jar of whiskey and also found in appellant’s pocket a half pint flash of the same liquid. Appellant claimed that he had brought the half gallon of whiskey from a negro in Milano that afternoon who had agreed to leave same in said culvert for him, and he denied having put the package containing the liquor in the culvert but said he was in the act of taking it out when the officers came up. He also stated that the negro gave him the half pint of whiskey in Milano that afternoon, and there seems no dispute of the fact that, if this was so, appellant had conveyed this quantity of liquor about six or seven miles along the public road to his home and back. On the trial appellant exhibited the following document:
“This is to certify that Mr. A. Gandy has had the flue and I recommend that he should use strychnine or whisky as a stimulant for his heart.
“F. E. Fiddeul, M. D.
March 5, 1922.”
This he said he kept in his pocket. Asked if he had had it filled as a prescription, he said he had not; that he never bought any whisky on it or strychnine. Asked if at the time of trial in September he had bought any whisky on it, he said no, — he guessed he could make out without it. Asked what use he ,had for the document above quoted, he said in case he was caught with whisky on him he could show he had a right to it because “he told me to drink it for my health.” That the above document was not a prescription is plain; that the. whole scheme was to aid appellant to escape the consequence of connection
with illicit liquor transactions, is strongly suggested. However, the trial judge charged the jury as follows:
“If you believe from the evidence that the defendant transported intoxicating liquor along the public road from Hanover to Milano on or about the 5th day of August, 1922, as alleged in the indictment read to you, yet if' jmu find and believe from the evidence that the defendant transported said liquor, if any, only for medicinal purposes for himself, then you will return a verdict of not guilty.
“If you should find from the evidence that the defendant transported' the half pint of whisky exhibited in evidence before you for medicinal purposes only for himself, you will acquit him as to that phase of the case.”
Also in that part of the charge applying the law to the facts of the case the court told the jury that before they could convict they must believe beyond a reasonable doubt that the liquor in question was not transported for medicinal purposes for the defendant.
There are two bills of exception in the record by one of which complaint is evidenced of questions to the appellant while a witness as to how often he had gone to the various towns in Milam County. This presents no’ error. In the other bill complaint is made of a remark of the county attorney during his examination of appellant as a witness. There was no request for an instruction that the jury should not consider the remark and the explanation of the court makes it. appear that the remark was entirely harmless.
Appellant asked two special charges which were refused, — one a peremptory instruction of not guilty, — the other a charge that unless the liquor was transported for purposes of sale the jury should acquit. Both were properly refused. Another special charge was asked applying the law of circumstantial evidence to the whole case as made by the proof, which was also refused. There being a dispute over the fact as to whether appellant had transported the half gallon of whisky, and the State’s case, if dependent upon the transportation of such liquor being made out by circumstantial evidence, there was no error in the trial court giving the jury the law of circumstantial evidence as applicable to the transportation of said half gallon of liquor, but there be-in a direct admission on the part of appellant that he had transported the half pint of whisky, the requested charge applying the law of circumstantial evidence to the entire case was properly declined.
The question of transportation for medicinal purposes was fully submitted as above indicated, and by the jury decided adversely to appellant, and there is ample evidence to justify such conclusion.
The only exception to the charge deemed of sufficient importance to call for any discussion is as follows:
“Because the court erred in presenting that part of the charge to the jury wherein it is stated that the State relied on circumstantial evidence
as to the one-half gallon of liquor alleged to have been transported by the defendant, and that the defendant should be acquitted if the jury should find that the defendant transported one-half pint of whisky, as follows:
“1. Because said charge is misleading and calculated to confuse the jury.
“2. Because said charge is on the weight of the evidence.”
It is difficult to know what is meant by this. The court below, as above stated, charged the jury as to the transportation of the half gallon of liquor that it was a case of circumstantial evidence and gave the usual charge in such case, and beyond doubt if the offense was made out by the transportation of the half pint of liquor, then the case was not one of circumstantial evidence and there is nothing in the exception. Appellant contends that the Legislature having given him the right to possess intoxicating liquor for purposes other than sale, he would have the right to accept the bottle which he says was given him by the bootlegger who sold him the half gallon, and to carry it about his person. This is not the law, and without discussing the probability that the jury accepted none of appellant’s claims but believed that he had gone home that afternoon, gotten all the liquor found on him and brought it back to the place of arrest, — our view of appellant’s contention is presented. It seems clear to the writer of this opinion, that even if the doubtful right of the Legislature to enact a law authorizing possession of intoxicating liquor for purposes other than sale, — be conceded, still there is no law authorizing the transportation of any quantity of such liquor great or small for beverage purposes and we would be without right or power to render a decision the effect of which would be to grant the right to transport liquor for beverage purposes in small quantities, same being a right which is withheld by statute and Constitution.
Secs. 1 and 2 of the Eighteenth Amendment to the Federal Constitution are as follows:
“Sec. 1. After one year from the ratification of this article the manufacture, sale or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
“Sec. 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.”
This has been in effect in the United States since January 19, 1919, and voices the supreme law of the land. Succinctly, this forbids the manufacture, sale or transportation of intoxicating liquor in any quantity for beverage purposes; and looking to the execution of this mandate. concurrent power is granted to the Congress and the legislatures of the several states to enforce the purposes of said amendment by
appropriate legislation. In different verbiage the amendment to our own State Constitution forbids traffic in intoxicating liquors for beverage purposes, and in subdivision d of said State amendment it is declared that intoxicating liquors are subject to the police power of the State, and the legislature is given power in express terms to pass “additional prohibitory laws or laws in aid thereof.” As we read these constitutional amendments they aim at the prevention of all use of intoxicating liquor as a beverage, and by express grant in the Federal Amendment of power to the legislatures, State and National, to pass laws in aid of said purpose, there is thus by implication denied to them any power to pass laws in derogation of or opposition to said purpose. We take it that any law whose fair construction would make its operation a hindrance to or in opposition to the prevention of the manufacture, sale or transportation of such liquor for beverage purposes, should be held unconstitutional as violative of the forbiddance of both State, and Federal constitutions.
From what we have said it follows that in our opinion the transportation of the half pint of whisky admitted by appellant to have been carried by him some twelve miles along the public road and found on his person by the officers who arrested him, makes him amenable to the law forbidding transportation of intoxicating liquors. Under the facts of this case he was transporting such liquor either for medicinal or beverage purposes. The learned trial judge told the jury in his charge that unless they believed beyond a reasonable doubt that he was not transporting it for medicinal purposes, they should acquit. This eliminates from the case the proposition of transportation for medicinal purposes. The necessary conclusion would be that in the opinion of the jury he was transporting it for beverage purposes, and in such case they were justified in rendering the verdict which appears in the record.
Any other conclusion would practically nullify the law forbidding the transportation of intoxicating liquors for beverage purposes. A judgment of this court announcing that because the Legislature had attempted to give the right of possession of a small quantity of liquor for beverage purposes, that this court would now hold that this necessarily carried with it the right to transport that quantity of liquor for such purpose,- would be for us to say that which is wholly outside any expression of our State legislature and which, in the judgment of the writer, is clearly and expressly in the direct face of the expressed terms of the Eighteenth Amendment to the Federal Constitution. We have quoted this above and it will be observed that by its words it forbids the transportation of liquor for beverage purposes, and for this court or any legislature to undertake to read into that constitutional utterance that when it forbade “transportation” it intended to say, — the transportation of not more than a pint or a
quart of liquor, — would seem an a word which is plain and needs assumption of a power to construe no such interpretation.
The judgment will be affirmed*
Affirmed.