¶1 ON MOTION FOR REHEARING.
¶2 In a courteous motion appellant urges that our conclusion appears based on the mistaken idea that this is a case of circumstantial evidence. We did not intend to convey such impression. Mr. McCoy swore that he saw appellant come into the back yard of the Dixie Cafe, walk across said yard and lay two bottles of whiskey “out of his hip pocket in that box;” then saw two other men come out of the cafe into the yard and saw appellant walk between these two men and hand another bottle to “this big man,” who was tearing the paper off this bottle and pulling the cork out when witness took the bottle out of his hand. As to what occurred before appellant walked out into said yard, — we find in the tes *631 timony of witness Loveless the statement, in substance, that he with appellant and two other men were on the sidewalk in front of said cafe; that appellant went in the restaurant and witness followed. Witness stopped at the water cooler, and when he got out in the back yard the others were under arrest. It thus appears that if appellant had the whiskey in his pocket as testified to by the officer, and that he had just come from the sidewalk in front through the restaurant, and to the place where he put the whiskey down, this was transportation. Benson v. State, 95 Texas Crim. Rep. 311. It is true appellant denies having the bottle of whiskey in his pocket at all, but the jury has solved these fact issues against him.
¶3 Being unable to agree with appellant’s contention, the motion for rehearing will be overruled.
¶4 Overruled.