The opinion
ON REHEARING.
(6) The appellant’s contention on the trial was that only two quarts of the liquor belonged to him, and that the other liquors found in his suit case belonged to others and were put in his suit case without his knowledge or consent, and appellant’s evidence tended to sustain this theory. The contention of the state was that all the liquors were carried by the defendant and were in his possession when he was arrested, and evidence was offered to sustain this theory. If only two quarts of whisky belonged to the defendant and this was all he had in his possession, its possession was not unlawful; and, if he was carrying it for his own private use and it was not in excess of what was reasonably necessary for his personal use and comfort while on the journey, it would be protected as personal baggage and under the protection of the commerce clause of the Constitution. — Connolly v. Warner, 106 Mass. 146 , 8 Am. Rep. 300 ; 5 R. C. L. 161, §§ 786-788.
(7) If, however, the other liquor did not belong to him, but was the property of others, and defendant was carrying it, not for his own use, but for others, it was not personal baggage and was not entitled to protection as such and its possession would be illegal. — 5 R. C. L. 163, § 788.
An analysis of the evidence in the case shows that the only contested issue was whether the appellant knowingly had in his possession more than two quarts of spirituous liquors, and, when charge 1 given at the instance of the state is applied to the issues as defined by the evidence, it asserts a correct proposition of law and was properly given.
The result is that the application must be granted, the former judgment of reversal set aside, and an affirmance ordered.
Application granted.