The opinion
ON REHEARING.
November 28, 1923.
LATTIMORE, Judge.
— Apellant Apellant insists that upon the authority of Newton v. State, 94 Texas Grim. Rep., 288, this is a ease of circumstantial evidence and that we erred in sustaining the refusal of the learned trial court to so charge. The Newton case readily differentiates itself from this upon the facts, and every case must be decided upon those principles of law applicable to the particular facts.' In said case three men drove a car to a given house where it remained for some time; while there some one put a sack of bottled liquor in the ear. Three men had gone in the ear to said place. It appears that two of them testified on the trial, one of whom was the appellant. He testified that he did not place the liquor in the car and did not have any connection with it at all, but that same was placed in said car by the third man, who was dead at the time of trial. The man who was driving the car at the time it'was stopped and the bottled liquor found therein, testified that he did not know who placed said
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sack in the car. The charge against the appellant in that case was the possession of liquor for purposes of sale. Manifestly under such testimony the question of whether the liquor was in the possession of the appellant for purposes of sale was' dependent upon circumstantial evidence. In the instant case a car driven by appellant approached and passed two witnesses who called to him to stop. After running about one hundred yards past said witnesses who were officers, the car stopped and, according to the State’s witnesses, appellant was seen to throw out of said car two sacks containing jars of whisky. The charge laid against appellant was transporting intoxicating liquor. That these facts make out a case of such transportation by direct testimony, seems clear.
Nor are we able to agree that the statement in the argument by the State’s attorney that the defendant was guilty of transporting intoxicating liquor, was a transgression of the rules regarding the statement of the attorney’s personal opinion of the guilt of the accused; It is also true that rules relative to this must depend upon the facts of the particular ease. Appellant cites Cooksie v. State, 26 Texas Crim. App., 81, as upholding his contention, An analysis of the opinion in that case reveals that this court held the argument erroneous because of that part thereof in which the State’s attorney begged the jury not to convict the accused of a misdemeanor because in such case he would have to lie in jail at the expense of the county. We think the statement made by the prosecuting attorney in the case now before us entirely susceptible of the interpretation that said attorney was asserting the guilt of the accused under the evidence. See Henry v. State, 38 S. W. Rep., 802 , for a case in which much stronger statements were made than that now before us, in which this court held it not reversible error.
Appellant’s motion for rehearing will be overruled.
Overruled.