
    WILKERSON v. STATE.
    (No. 10391.)
    (Court of Criminal Appeals of Texas.
    Nov. 10, 1926.)
    1. Intoxicating liquors <&wkey;239 (3) — Defense ' held sufficiently presented by instruction to acquit if defendant was agent in transporting the whisky, believing it intended for medicinal purposes.
    Instruction to acquit if defendant were acting as another's agent in transporting whisky, believing he intended to use it for medicinal purposes, held .to sufficiently present defensive issue.
    2. Criminal law &wkey;>l086(l4) — In absence of notation of exception on refused special charge, and its preservation in separate bill, refusal cannot be considered.
    Refusal of special charge cannot be reviewed, where no notation of exception appears on charge, and exception is not preserved in separate bill. .
    Appeal from District Court, Howard County ; W. P. Leslie, Judge.
    W. L. Wilkerson was convicted of transporting intoxicating liquor, and he appeals.
    Affirmed.
    
      W. A. Anderson, oí San Angelo, and Clyde E. Thomas, of Big Springs, for appellant.
    Sam D. Stinson, State’s Atty., of Austin,' and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   HAWKINS, J.

Conviction is for transporting intoxicating liquor; punishment being one year in the penitentiary.

This is a companion case to Johnson v. State, reported in 104 Tex. Cr. R. 312, 283 S. W. 809. The facts are the same. Appellant testified that Johnson had bought the whisky from some Mexicans, who secreted it at the direction of Johnson; that later when the officers discovered appellant taking the whisky to the automobile he was doing so for Johnson, who intended taking it home to be used for medicine. The court told the jury if appellant was acting as Johnson’s ag.ent in transporting the whisky, believing Johnson intended to use it for medicinal purposes, to acquit him. This sufficiently presented the defensive issue. A special charge was requested and refused, hut no notation of exception to the court’s action appears on the charge; neither is it preserved in a separate bill. We have repeatedly held that under such conditions the refusal of the special charge cannot be reviewed. Linder v. State, 94 Tex. Cr. R. 316, 250 S. W. 703. See Wear v. State (Tex. Cr. App.) 283 S. W. 811, for collation of authorities.

Finding no error in the record, the judgment is affirmed. 
      (&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     