Untitled Texas Attorney General Opinion ( 1944 )

OFFICE OF THE ATTORNEY GENERAL OFTEXAS
AUSTIN
GROVERSELLERS
ATTORNEY GENERAL
~!onor&le D. :y. Durkhaltcr;
County Attorney, 'IhrockmortonCounty
Throckmorton, Texas
Dear Sir:
at forour opinion,
in which you sub ving i5terprgtation
of .the Texas Isq e&ions are restated
as follows:
.
, h a casa should~the judge,instruct
e transportation must be fo&the
to be unlawful?
a prosecutioh for unlawful transpor-
tation of intoxicating li:;uor15 a dry ares, is'the
ownership of the li.;uormaterial? In other vzords,
does it make any difference rhather or not one~.ov.ns
,any interest in the liquor being transported by dim,
as regards criminal liability7
The prohibitory ;:rovisionsof the stvtute raIiiVWIt
to :;uurproblems are contained in Section 4 (b) of the Texas
Liquor Cbntrol Act (Yor50n's ,inilotated
?cnal Code, .irtv 666-4
(b):
Rurkhaltar, Page 2
Ronorablo 1).\;'.
n It shall be unlawful for any person in any
dry area to mrnufncturo, distill, brew, sell, pos-
scss for the ;;ur;oseof ~618, l?port into this State,
px?ort from the St.:te,trcnsl:ort,distribute, ware-
house, store, solicit or take orders l'os,or for
the purpose of sale tn bottle, rectify, bl-lnd,
treat, fortify, nix, or Izocnss any~liquor, dis-
tilled spirits, whi&key, gin, brandy, wine, rum,
beer or ale."
Xe hav3 carefully examined the entire statute, in-
cluding the various exceptions availoblo as defenses to the
quoted nection, ant;we fail to find any provision ::'lzatsvor
to require either allsgation, ;~roofor instruction by the
Court .thattransportation of prohibited liquor must be for
the purpose of sale in orsor to sustain a conviction for such
transportation in a dry area. In our opinion the holding of
the Court of Criminal i~ppu~ls in the case of Crowloy v. iitate,
472, followed fin a long lino
.92 Tex. Cr. R. 103, 242 S. ‘ii'.
of decisions by that 'court,is controlling. Whilu.it is true
,that tha Court had under consideration 5.5 the-Crowley case
the state-wide prohibition act as it existed,v;henthe.oRlnion
was.rendered, tho 1ent;uageem;rloyedby the Legislature is sub-.
stantially tha same in the present statute as it relates to
dry ar as within the state. See also Stringer v. State, 92
Tex. Cr. R. 46, 241 S. Vi. 159; Porester v. State, 94 Tex.,Cr.
R. 295, 250 S. X. 1027.
You are therefore respectfully advised that the
answers to each of ~the first two questions proQoundep by you .
.ere in the negative.
,
In ansv;orto your third question, your attention is
invited to Section 23a, Subdivision 1 of the statute (Vernon's
Annotated Fenal Code, Art. 666-23a,.Subdivision 1);
"It is provided that any person who purchases
alcoholic bevoragas tor,i!is0~5 consum:jtionmay
trens::ortsame from a plucc*v!herethe sale thereof
is legal to a plsce where the :jossessionthareof
is leSa1."
This section affords a defense to be tiaely inter-
post&by the accused a:l$icable under the facts of the case,
honorable I).VV'.Eurkhalter, Page 3
end it is not skessary to be negativad in tha state's plead-
WI* Absent evidence raising the issue, it is, of course,
improper to ificludeit in tho Court’? charge0
Violetions of the Texas Liquor Control i&t cons-
titut'c?
aiSCi6in6E0lOE3. Szct:.on41 of the act provides the yen-
alty for i11oga.j. transportation of liquor condomned by Section
4 (b), or ;,rticlo666-4 (b) supra. (Vernon's Fenal Code, iirt.
666-41.)
In miadamaanor cases it is ~011 settled that all :
parties participati~~;in~,an.'offensa
are principal offenders
end may be prosacuted 3nd ~:unlsh=das such. 'Therefore, the
mere fact.that liquor baing transported does not belong to the
perapn trans:jortingit cannot loGally affect his guilt or
innocence or enable him to escape the penal consoquonces for
such Qansportation,
.
.
Yours very truly
ATTCRNxY GENERA4 OF TEXAS
,
BlV:b
..
,
,