                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


             ,


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