
    WARREN v. STATE.
    (No. 7647.)
    (Court of Criminal Appeals of Texas.
    April 18, 1923.)
    1. Intoxicating liquors <®=»239(4) — Refusal in prosecution for unlawful transportation, to present defense no liquor was kept except for medicinal purposes, held reversible error.
    In a prosecution for unlawful transportation of intoxicating liquor, refusal of trial court to present to jury defense that accused used liquor for medicinal purposes, that he had used a tonic for years composed of certain drugs in liquor, held reversible error.
    2. Intoxicating liquors <3=»138 — Removal of liquor held not illegal transportation.
    The removal of liquor from defendant’s door to a nest in a chicken coop on his own premises, a distance of from 5 to 10 steps, held not illegal transportation.
    Appeal from Criminal District Court, Bowie County; P. A. Turner, Judge.
    J. T. Warren was convicted of unlawfully transporting intoxicating liquor, and appeals.
    Reversed and remanded.
    Johnson & Waters, of New Boston, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction is for the unlawful transportation of intoxicating liquor, punishment being assessed at one year’s confinement in the penitentiary.

Officers approached the house of appellant early in. the morning and saw him in the yard. He apparently discovered them, went in the house, but reappeared almost immediately with something in his arms; the officers saw him go to some hen nests not over ten steps from the door of his house and place something in the nests. They discovered in the nests six pints of whisky. Upon these facts this conviction rests. Appellant testified that he had the liquor for medicinal purposes; that he had been suffering from rheumatism, and had used a tonic for many years composed of certain drugs in liquor for the relief of it. The court declined to present this defensive issue to the jury. Objection to his main charge for omitting the same was presented and a special charge requested. The case falls squarely within the principle announced in Mayo v. State, (Tex. Cr. App.) 245 S. W. 241, and White v. State (Tex. Cr. App.) 247 S. W. 557. The trial judge may not have given credence to the testimony raising this issue, but it was not for him to determine it. That was the exclusive province of the jury under proper instructions. The state concedes error. It occurs to us that the evidence does not show a violation of the law denouncing the transportation of intoxicating liquor. The undisputed evidence shows that tije liquor was not removed from appellant’s premises, but was changed from one location to another a distance estimated from 5 to 10. steps.

The judgment is reversed, and the cause remanded.  