Randell v. State , 102 Tex. Crim. 410 ( 1925 )

The offense is unlawful possession of intoxicating liquor and the punishment is one year in the penitentiary.

The state's testimony shows that appellant was found in possession of more than a quart of intoxicating liquor. The appellant's testimony is sufficient if true to account for such possession in a manner consistent with his innocence of any intention to sell it. In this state of the record, the appellant requested the court to affirmatively charge the jury in effect that if the liquor was not possessed by the defendant for the purpose of sale or if they had a reasonable doubt as to such possession being for the purpose of sale, to acquit the defendant. This charge the court refused and the matter was not presented in an affirmative manner in any part of the court's instructions. This was error. Davis v. State, 141 S.W. 93. Grant v. State, 143 S.W. 93. Jones v. State, 96 Tex. Crim. 332; 257 S.W. 895. Garcia v. State, 273 S.W. 856, and cases there cited.

Appellant also complains because the court refused to allow him to make an explanation of the circumstances under which he had been adjudged guilty and paid a fine for misdemeanor theft. This action of the court was also error. Scott v. State,47 S.W. 531. Tippett v. State, 39 S.W. 120.

On another trial appellant should not be interrogated as to his silence when arrested. Under the authorities in this state his silence cannot be used in evidence against him. Skirlock v. State, 272 S.W. 782.

Other matters complained of will probably not arise in the same form on another trial, but for the errors above discussed, the judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.