
    VEASEY v. STATE.
    (No. 8401.)
    (Court of Criminal Appeals of Texas.
    April 16, 1924.)
    1. Intoxicating liquors &wkey;>224 — State required to show possession was for purpose of sale.
    In prosecution for unlawful possession of liquor for purpose of sale, burden rested on state to prove, not only possession, but that such possession was for purpose of sale.
    2. Criminal law <&wkey;f 173(2) — Intoxicating liquors <@=239(7) — Charge erroneous, as authorizing conviction of possession not for purpose of sale, amt refusal of special charge reversible error.
    In prosecution under Vernon’s Ann. Pen. Code Supp. 1922, art. SSS^ et seq., for possessing liquor for sale, in which defense was possession for medicinal purposes, - an instruction held erroneous, as in effect authorizing finding of guilt if accused possessed liquor for beverage or other lawful purpose, and refusal to correct error by special charge was reversible error.
    dfcji'or other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes
    Appeal from District Court, Harrison County ; P. O. Beard, Judge.
    Henry Veasey was convicted of unlawfully possessing intoxicating liquor for the purpose of sale, and he appeals.
    Reversed.
    Lyttleton & Jasper, of Marshall, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   ■MORROW, P. J.

Tile offense is the unlawful possession of intoxicating liquor for the purpose of sale; punishment fixed at confinement in the penitentiary for a period of two years.

There was found in possession of the appellant 2% gallons of whisky. A still was also upon his premises. Appellant claimed in his testimony that he was suffering with rheumatism and was making whisky for medicinal purposes; that he had certain herbs which he intended to put into the whisky and use as a remedy for the disease mentioned. There is no affirmative evidence giving any other explanation of his possession of the whisky. There is no suggestion in the record that he had sold or offered to sell any of the liquor.

The court, in instructing the jury, told them that, if they believed that the appellant possessed liquor for the purpose of sale, he should, be convicted. In addition to that charge, he gave the following:

“On the other hand, if you believe from the evidence that the defendant was possessing the liquor solely for his own use as a medicine in sickness, then find the defendant not guilty. Again, if you have a reasonable doubt as to whether he was possessing the liquor in question solely for his own use as a medicine in sickness, then give the defendant the benefit of that doubt and find him not guilty.”

The learned trial judge apparently misapprehended the phase of the statute under which the prosecution is made. The offense denounced is “the possession of intoxicating liquor for the purpose of sale.” The burden rested upon the state to prove, not only the. possession, but that the possession was for the purpose of sale. The appellant might have had liquor for use as beverage, hut such possession would not have been within the provision of the state statute. See Yemen’s Ann. Pen. Code Supp. 1922, art. 588% et seq. It was, however, within the terms of the charge. In other words, under the instruction, if the jury believed that appellant possessed liquor for beverage purposes or for some other lawful purpose such as mechanical, scientific, or sacramental use, he would, under the charge of the court, have been guilty. Ex parte Mitchum, 91 Tex. Cr. R. 63, 237 S.W. 936. It is true there was no affirmative evidence that he had it for any purpose, except for medicinal purposes. The state relied upon circumstances, which by the way were very meager, to show that the whisky in appellant’s possession icas for the purpose of sale.

Taking the charge as a whole, as framed, it misdirects the jury with reference to the substance of the offense defined by the statute. It should have been corrected or cured by a special charge. The refusal to do so requires a reversal of the judgment, which is ordered..  