Clevenger v. State , 96 Tex. Crim. 23 ( 1923 )

Appellant testified that he purchased two quarts of whisky which he had in his possession for the purpose of using it for medicine; that he had been advised to put bitter apple in whisky as a remedy for chills and fever; that during the past two years some of the members of his family had been ailing with that malady most of the time and he had been advised that if it continued it might produce black jaundice; that the only reason for having the whisky in question was to take it to his home and fixing it for medicine and using it for that purpose.

The jury was instructed to acquit if they believed that the purpose of appellant in transporting the intoxicants was to use it for medicine. The court was requested to instruct the jury to acquit if they believed he transported the liquor for medicine orhad a reasonable doubt as to whether that was his purpose in transporting it.

That the appellant had in his possession two quarts of whisky and was carrying it with him is shown without dispute. He interposes as an affirmative defense the facts stated above, going to show that his transportation of the whisky was to his home for medicinal purposes. The paragraph of the main charge of the court required the jury to believe this affirmative defenseto be true as a predicate for an acquittal. The appellant's innocence depended upon the defensive theory. The law did not impose upon him the duty of proving its truth, but it required alone that the evidence be such as to establish such facts as would leave in the minds of the jury a reasonable doubt as to its truth. The special charge would have complied with this rule. The following cases are in point; Sparlin v. State, 75 Tex. Crim. 102, 170 S.W. Rep., 307; Earnest v. State, 83 Tex. Crim. 41, 201 S.W. Rep., 175; James v. State, 86 Tex. Crim. 107, 215 S.W. Rep., 459; Goforth v. State, 92 Tex. Crim. 200, 241 S.W. Rep., 1027; Savage v. State, 92 Tex. Crim. 520, 244 S.W. Rep., 1002; Richardson v. State,91 Tex. Crim. 318. The authorities are reviewed at some length in Goforth's case, supra, and for a further review of them that case is referred to.

For the reasons stated the motion for rehearing is granted, the affirmance set aside, the judgment of the trial court reversed and the cause remanded.

Reversed and remanded.