
    GRIFFITH v. STATE.
    (No. 8678.)
    (Court of Criminal Appeals of Texas.
    April 1, 1925.)
    Intoxicating liquors <©=>239(2) — Evitien.ee held to require charge on transportation for medicinal purposes.
    Evidence that defendant took whisky to home of B., for whom it was prescribed for bronchitis, and that in leaving on errand they put it under defendant’s car seat, though latter admitted drinking some of it, helcL to require charge on issue whether defendant’s purpose throughout was to transport it for medicinal or for beverage purposes.
    Appeal from District Court, Tyler County; J. M. Combs, Judge.
    
      Charlie Griffith was convicted of unlawful transportation of intoxicating liquors, and he appeals.
    Reversed and remanded.
    Mooney & Smith, of Woodville, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is the unlawful transportation of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

According to the state’s testimony, the appellant and one Barlow were riding in a Ford automobile which was searched. There was found under the seat of the car a small bottle about half full of whisky.

Barlow testified that he was 63 years of age; that he was affected with chronic bronchitis and had been for some time; that the use of whisky had been prescribed for the malady; and that he had requested the appellant to bring him some whisky to be used for that purpose. Arrangements had been made with the appellant to get some corn, and on the following day appellant arrived at the home of Barlow and had a small bottle of whisky. Appellant said to Barlow that he had brought him some whisky.- Barlow said he believed the officers asked him if he knew the whisky was in the ear, and he said he did, but that he really did not know of his own knowledge that the appellant had put it in the car, and that he did not at that time know whether the whisky had been left at his house or put back in the car.

Two doctors testified that whisky was a remedy for chronic bronchitis, and one of them testified that Barlow was affectecLwith bronchitis, or something of that nature, and had been for a long time; that he regarded whisky as having a medicinal value and prescribed its use for the particular disease mentioned; that he had told Barlow to keep whisky on hand and use it for his ailment.

According to the appellant, he was at the home of Barlow on the evening before the arrest, and Barlow was complaining and told the appellant that he should like to have some good whisky in case he could find any, and appellant said he would try to get some for him. He got the bottle in question, and on the following morning, when he had an engagement with Barlow, he said: “I had a little luck in getting some whisky.” Barlow expressed his satisfaction and took a drink of the whisky. As they were abóut to start on a prearranged errand for some corn, they put the bottle of whisky in the cushion of the car. Officers accosted them on the way, and one of them said: “Haven’t you got some ‘shinny’ in that car?” Appellant replied that there was some under the front seat.

Much of the testimony is about the assault upon the appellant by the officers and the threatened assault upon Barlow. Appellant said that he carried the whisky to Barlow because he was sick and was his friend; that he did not care for it for his own use as a beverage; that he had known Barlow for. a long time and stayed at his house a great deal. He also said: “I told these men that the whisky was mine. I told that the ear was mine and it was my whisky.” Appellant said that he drank some of the whis-ky and might have drunk more of it that day if they had not gotten it away from him.

Much of the statement of facts is devoted to the transaction in which the assault was made upon the appellant in an effort to get him to divulge the source from which the whisky came.

The court instructed the jury that it was unlawful for any person to transport intoxicating liquor. No mention was made of any of the exceptions. Objections were urged to the charge because it failed to instruct the jury that it would not be unlawful to transport intoxicating liquor for medicinal purposes. Requested charges were also presented and refused. In our opinion, the issues were raised by the evidence. If, before or after reaching the home of Barlow, the liquor was carried by appellant for beverage purposes, his conviction could be sustained; but we think his purpose throughout was one of fact for the jury to solve. See Lewis v. State (Tex. Civ. App.) 263 S. W. 923, and cases there cited.

The judgment is reversed and the cause remanded. 
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