Piper v. State ( 1930 )

The offense is the unlawful possession of intoxicating liquor for the purpose of sale; penalty, confinement in the penitentiary for one year.

A search of the appellant's house and premises revealed the presence of three half-gallon jars of whisky. Concerning the possession of the whisky the appellant testified as follows:

"I used it for my wife and myself. It was close to Christmas and she was almost compelled to have a little liquor. The doctor had told her to take it occasionally. * * * I did not have it there to sell to anybody."

He also testified from whom he bought the whisky. His confession was introduced in evidence, which merely stated that he "had about one quart of whisky in the wood-pile when they (the officers) got there."

Appellant sought to impeach the affidavit for the search warrant by oral testimony going to show that the affidavit did not speak the truth. The court properly rejected such testimony. See Cornelius on Search and Seizure, 2nd Ed., p. 428, secs. 170-171, and cases cited; also Ware v. State,110 Tex. Crim. 90; Ruhmann v. State, 22 S.W.2d 1069; Bird v. State, 7 S.W.2d 953; Ross v. State, 11 S.W.2d 517; Cordona v. State, 31 S.W.2d 452, and cases cited.

In its charge the court instructed the jury to acquit if the liquor was possessed for medicinal purposes or if the jury had a reasonable doubt upon that subject. By special charges prepared and presented the appellant sought to have the jury instructed to acquit if they believed that he possessed the liquor for beverage purposes for himself or his family and not for the purpose of sale. We think it was the right of the appellant to have one of the special charges last above mentioned given to the jury. To convict, it is necessary that the proof show that the liquor was possessed for the purpose of sale. The court, in its charge, limited the right to possess it to medicinal purposes. See Petit v. State, 90 Tex.Crim. R., and other cases listed in Vernon's Ann. Tex. P. C., Vol. 1, p. 435, note 7.

Because of the error in the charge, the judgment is reversed and the cause remanded.

Reversed and remanded.

HAWKINS, J., absent.

ON MOTION FOR REHEARING.