
    WHITE v. STATE.
    (No. 7616.)
    (Court of Criminal Appeals of Texas.
    Jan. 31, 1923.)
    Intoxicating liquors <®=> 138 — Instruction that permit to transport medicinal liquor is necessary is error.
    • In a prosecution for unlawfully transporting liquor, where the defense is that the liquor was for personal medicinal use, an instruction that such facts did not constitute a defense unless a permit to transport had been procured is reversible error.
    Appeal from District Court, Lamar County; Ben H. Denton, Judge.
    John E. White was convicted of unlawfully transporting liquor, and he appeals.
    Reversed and remanded.
    Chas. Roach and B. B. Sturgeon, both ,of Paris, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The conviction' is for unlawfully transporting intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of two years.

The appellant had obtained a gallon of whisky, and was walking in the direction of his automobile about 40 feet distant, when he was arrested. He interposed the defense that he was sick with a malady which required the use of whisky, and that the doctor had advised him to take it; that the whisky in his possession was for medicinal purposes for his own use. His testimony was supported by the testimony of his physician.

The court, in its charge, instructed in substance that these facts would not constitute a defense unless the appellant had procured from the State Comptroller a permit to transport the article. The state’s counsel concedes the inaccuracy of this ruling. See Const., art. 16, § 20.

The same question was before the court in the case of Mayo v. State, 245 S. W. 241.

Because of the erroneous instruction to the jury, the judgment is reversed and the cause remanded. 
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