The opinion
The consideration of this case offered us in this motion appears to have lost its original significance from that which we think was its inception. Originally it was claimed that the State should have set forth in the complaint and information what kind of carrier appellant was, and then negatived the fact that she had a permit to act as such carrier in the transportation of the intoxicating liquor found in her possession. The majority of the court merely intended to say that the State could not possibly see into her mind and thus negative the kind of carrier appellant intended to be. That the possession of a permit to do the thing she intended to do, as the kind of carrier she intended to or claimed to be, could only be told by her. It surely did not lie within the prosecutor's ability to read her mind or anticipate her defense, and tell what kind or class of permit she should have had in her possession, or for what purpose she was thus transporting the liquor, and thus in the pleading negative the possession of the kind of permit she was going to show herself liable to have in her possession. We therefore held that it was not necessary to negative the possession of any certain kind of permit, but that it was only necessary to say that she had no permit.
Permits provided by law are many and varied, occupying about eight pages of the statute, Art. 666-15 Vernon's Ann. P. C., setting forth the different kinds and classes of permits under which one could operate and still be within the law, the possession of which would exempt one from punishment.
However we find ourselves in a further controversy, after having passed the above matter, and that is as to what would become of one who had purchased a bottle of whisky for his own consumption at a liquor store, and who desired to take the same to his home. The answer seems to be plain. All that was necessary for him to do would be to take it home under authority of Art. 666, sub. 23a as set forth in the original opinion, which provides that such procedure is legal, and not therefore unlawful, to carry such beverage to his own home, and, if legal, then it would follow that no permit would be necessary. But appellant says, nevertheless, she might be subject to detention perhaps and questioning by vigilant officers as to what was her purpose in thus transporting this liquor, and she might have to prove her innocence rather than the State being called upon to prove her guilt. We have no power of control over the conduct *Page 419
of peace officers or Texas Liquor Control Board agents, and we cannot guarantee immunity from arrest or investigation for any offense, nor even the embarrassment to any citizen relative to any offense of any kind, but we do say that such liquor could be carried for one's own consumption from a place where the purchase was legal to a place where the possession thereof was legal, without having a permit to do so. We think the statute above referred to eliminates the necessity for a permit under such circumstances.
Lest there be any misunderstanding relative to our holding herein, we repeat that in a wet area one can transport liquor from a place where it is legal to purchase same to a place where it is legal to possess same, such as his home, and that no permit to thus do is required under the law.
It should be remembered that the traffic in intoxicating liquors is not a right; it is but a privilege, and it is surrounded by many stringent regulations. It cannot be sold in certain localities, or at certain hours, or to certain people; it cannot be drunk in certain places, and cannot be transported except in certain ways permitted by law. The statute prohibiting its transportation in a wet area is practically the same as the one immediately preceding relative to transportation in a dry area, except that the wet area allows such transportation only after the acquisition of one of the many permits, and also one allowing the privilege of carrying home such for one's own consumption.
We therefore say that we think this information properly charges an offense against the law, and that the trial court was correct in charging the jury as follows:
"You are hereby instructed that any person who purchases alcoholic beverages for his own consumption may transport the same from a place where the sale thereof is legal to a place where the possession thereof is legal; and in this case, if you find that the defendant, Willie Anderson, purchased this liquor for her own consumption or if you have a reasonable doubt thereof, you should acquit her."
Evidently the jury were not impressed with the contention that appellant's appetite was sufficient to fairly contemplate the consumption of 75 bottles of ale and 24 bottles of liquor.
The motion is therefore overruled. *Page 420