Lott v. State , 94 Tex. Crim. 630 ( 1923 )

The indictment alleged that appellant "unlawfully transported spirituous and vinous liquor capable of producing intoxication."

The contention is made upon motion for rehearing that, — as Article 588 1/4 Vernon's Penal Code, 1922, Supp., (Acts 37th Leg. 1st C.S., 1921) denounces as unlawful the transportation of intoxicating liquor, and as Article 588 1/4a1 permits such transportation for certain excepted purposes, and as the State elected to charge that the transportation in the instant case was "unlawful," — the State was required to prove that the liquor was being transported for none of the excepted purposes. The position is not tenable. Even before the statute was amended, and when it was necessary for the State to negative the exceptions, we held the burden to be on the defendant to show that he came within one of the statutory exceptions. Robert v. State, 90 Tex.Crim. Rep., 234 S.W. Rep., 89; Shaddix v. State, 90 Tex.Crim. Rep., 235 S.W. Rep., 602; Evans v. State, 91 Tex.Crim. Rep., 241 S.W. Rep., 148. The rule there announced applies with more force under the present statute where the exceptions are not descriptive of the offense, and therefore the state is not required to negative them in charging the offense or in making its proof.

The motion for rehearing is overruled.

Overruled.