Full opinion text
MAETIN, J.. Offense, the unlawful transportation of intoxicating liquor; penalty, 1½ years in the penitentiary. Three boys were around a pool of water when appellant rode up on a horse. 'In replying to his inquiry, they told him they were hunting jack rabbits. He rode back up the branch about 50 yards and testified he found a jar of whisky. The three boys came up and drank some of it. One of them testified he rode off with it. Appellant testified that he went a few feet over to the edge of the water and secretly dropped it in the water on the opposite side of the boys so they could not see him and that he did not go away with it. Appellant correctly contends that under his evidence he was not guilty of the transportation of intoxicating liquor and that his evidence raised an issue which should have been affirmatively submitted to the jury. The court in. his third paragraph used the following language; “By the term ‘transport’ as used in this charge is meant to carry from one place to another regardless of the distance carried.” He nowhere charged the jury to acquit if the jury believed or had a reasonable doubt that appellant only carried the whisky a few feet to secrete it from the boys present. The definition given by the court was under the peculiar facts of this case probably misleading. The approved definition of the word “transport” is: “The carrying or conveying from one place, locality or country to another.” Lee v. State, 95 Tex. Cr. R. 654, 255 S. W. 425; Benson v. State, 95 Tex. Cr. R. 311, 254 S. W. 793. If the appellant only transported the liquor in question a few feet for the purpose of hiding it from the witnesses, he was not guilty of transporting intoxicating liquor. The accused is always entitled to an affirmative presentation of his defensive theory when raised by the evidence. Modica v. State, 105 Tex. Cr. R. 39, 285 S. W. 823, and authorities there cited. The error in the failure of the court to do this in the instant case was accentuated by the definition of “transportation,” which may have been understood by the jury as authorizing a conviction of appellant under his own evidence, as he admitted carrying the whisky a few feet. The distance transported, while usually not controlling, may or may not be important according to the other facts in evidence. This is illustrated by the cases -of McGee v. State, 103 Tex. Cr. R. 654, 281 S. W. 1052; and Warren v. State, 94 Tex. Cr. R. 243, 250 S. W. 429. On another trial transportation should be defined, if at all, in the language approved by this court. In addition, the court should affirmatively give in charge the defense of appellant as raised by his evidence. For the error discussed, the judgment is reversed and the cause remanded. PER. OURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. <&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes