
    Chester Wood v. State
    No. 28,680.
    January 9, 1957.
    
      
      C. S. Farmer, Waco, for appellant.
    
      Leon Douglas, State’s Attorney, Austin, for the state.
   BELCHER, Judge.

The conviction is for the possession of whiskey for the purpose of sale in a dry area; the punishment, a fine of $250.

The testimony of two officers of the Texas Liquor Control Board and two police officers of the city of Waco shows that, under the authority of a search warrant, they searched appellant’s residence and his automobile. Their testimony further shows that they found in said residence and automobile six pints, five fifths, and two half-pints of whiskey.

Proof was offered that McLennan County was a dry area ■ wherein it was unlawful to sell whiskey.

Appellant, testifying in his own behalf, admitted the possession of the whiskey as shown by the. testimony of the officers. He testified that he did not possess the whiskey for the purpose of sale, but had it for his own personal use. He further testified that he suffered from bronchitis, had difficulty in breathing, and had been drinking whiskey for a long time in order to relieve his hard breathing; and that he had been advised by a physician that if he would drink some whiskey it would relieve his breathing.

Appellant timely objected to the failure of the court to submit his affirmative defense to the jury that if he possessed the whiskey in question for his own personal use and for medicinal purposes to find him not guilty.

There was no evidence, direct or circumstantial, that the appellant possessed this whiskey for the purpose of sale. The state therefore relied pn the presumption created by Art. 666-23a (2), Vernon’s Ann. P.C., in order to convict. This being so, the appellant was entitled to have the jury told, in the light of his testimony, that he would not be guilty if he possessed the whiskey for his own use or for medicinal purposes. Williams v. State, 139 Texas Cr. Rep. 35, 138 S.W. 2d 807; Nave v. State, 146 Texas Cr. Rep. 372, 175 S.W. 2d 419, and cases there cited.

For the error pointed out the judgment is reversed and the cause is remanded.

Opinion approved by the Court.  