
    LOVE v. STATE.
    (No. 9739.)
    (Court of Criminal Appeals of Texas.
    March 17, 1926.)
    1. Criminal law &wkey;>396(2) — Where state witness testified to conversation in which defendí-ant was requested to deliver whisky, exclusion of statement in conversation that it was for medicinal purposes held error (Vernon’s Ann. Code Cr. Proc. 1916, art. 811).
    Where state witness testified to conversation in which third party requested defendant to deliver whisky, exclusion of testimony by defendant that in same conversation third party requested whisky for medicinal purposes was erroneous, under Vernon’s Ann. Code Cr. Proc. 1916, art. 811, providing that, when part of conversation is in evidence by one party, whole of same subject may be inquired into by other.
    2. Intoxicating liquors <&wkey;235 — Evidence that liquor was for medicinal purposes of accused or others is admissible in prosecution for its transportation; its weight and credibility being for jury.
    In prosecution for transportation of liquor, defendant may introduce any testimony showing that liquor was transported for medicinal purposes for himself dr others; its weight and credibility being for jury.
    Commissioners’ Decision.
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    V. J. Love-was convicted of transporting intoxicating liquor, and he appeals.
    Reversed and remanded.
    
      Collins, Dupree & Crenshaw, of Hillsboro, for appellant.
    Sam D. Stinson, State’s Atty., of Austin,' and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The offense is unlawful transportation of intoxicating liquor, and the punishment is one year in the penitentiary.

The record discloses that the appellant and one Marks went to McLellan county and; brought back from there to the town of Hillsboro three one-half gallon fruit jars containing whisky. The testimony of the appellant and of the state witness on cross-examination is to the effect that one-half gallon of the whisky belonged to the appellant, and one-half gallon to the state witness Marks, and one-half gallon to Arthur Pratt. The appellant and Marks each testified that the one-half gallon belonging to each of them. was transported for medicinal purposes. The' state proved by the witness Marks that just before he and the appellant left Hillsboro to go after the liquor he saw Pratt deliver to the appellant $5, and that he heard Pratt say to the appellant at the time that he (Pratt) would appreciate it if they would bring him some whisky. The record discloses that the appellant took the stand, and, while testifying as a witness in his own behalf, testified, among other things, that he and Pratt had been intimate friends for many years, and that, when the said-Pratt gave him the $5, and asked him to bring him some whisky as testified to by the witness Marks, appellant offered to testify, and the bill of exceptions shows that, if permitted, he would have testified that, as a part of this conversation, and at the same time and place, the said Pratt told, appellant that he needed the whisky to be used as medicine, and wanted the appellant to bring him the whisky for that purpose. The state objected to the appellant testifying as to why Pratt said he wanted him to bring him the whisky. The state objected to this testimony on the ground that it would be hearsay and an assumption, and that neither the witness nor Pratt were shown to be competent to determine why Bratt would need the whisky. The state’s objection to this testimony was sustained, and the appellant was not permitted to testify as to the conversation that took place between Pratt and the appellant as to why Pratt wanted the appellant to bring him the whisky.

The court’s ruling in this matter was clearly error. Article 811, Vernon’s Ann. Code Or. Proc. 1916, provides that, when part of a conversation is given in evidence by one party, the whole of the same subject may be inquii'ed into by the other. Under this article in Vernon’s Code will be found many cases cited construing this article of the statute. We think that no case can be found that would sustain the trial court’s ruling in the matter. The testimony excluded was not only admissible, but highly material to the appellant’s defense. Lewis v. State, 263 S. W. 923, 98 Tex. Cr. R. 78. We quote from the opinion in that case:

“In the act of the Legislature on the subject it is declared that it shall .not be unlawful to transport intoxicating liquor for medicinal purposes, etc. Neither in the Constitution nor in the statute is there, in our opinion, warrant for restricting such transportation to the personal use of the accused. Such a limitation, would seem inconsistent with the intent of the Legislature in permitting its transportation for medicinal purposes. A far more reasonable interpretation would be that the well might transport medicine to the sick and not that the sick go in person for the remedy.”

Presiding Judge Morrow cites many Texas decisions sustaining the rule announced. In the instánt case we are satisfied that the appellant had the right to introduce any testimony available to him showing that the liquor was transported for the purpose of being used for medicine either for himself or for some one else. The question of its weight and credibility was one for the jury, but under the authorities in this state its admissibility is not open to doubt. It is proper to say that in this case Pratt was known to appellant to be afflicted with tuberculosis.

Other matters presented may not arise in the same form in the event of another trial. For the court’s error as above indicated, the judgment is reversed and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

LATTIMORE, J.

I agree to this reversal and that the exclusion of the testimony was error, and that, if admitted, its weight and credibility are for the jury, but am unwilling to assent to any conclusion, if such can be drawn, that, because the accused in a given case says that A, or A, B, and C, asked him to bring them intoxicating liquor for use as medicine, the jury or this court should hold him justified in such transportation. 
      <gs»Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     