
    FULLER v. STATE.
    (No. 8931.)
    (Court of Criminal Appeals of Texas.
    May 13, 1925.
    Rehearing Denied June 17, 1925.)
    1. Criminal law <§=>l 137(3)— Defendant estop, ped from complaining of charge more favorable than one requested.
    In a prosecution for transporting intoxicating liquors, defendant was estopped under doctrine of invited error from complaining of a charge, where court gave a much more favorable charge on the same subject than the one requested by him.
    On Motion for Rehearing.
    2. Criminal law @=5743 — Issue as to purpose of transporting liquor not foreclosed by defendant’s testimony.
    In prosecution for transporting intoxicating liquor, defendant’s testimony that it was for medicinal purposes was not sufficient to foreclose that issue, since neither state nor jury were bound to accept such evidence as true.
    Appeal from District Court, Milam County; John Watson, Judge.
    L. A. Fuller was convicted of transporting intoxicating liquor, and he appeals.
    Affirmed.
    B. P. Matocha, of Cameron, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for transporting intoxicating liquor; punishment, 15 months in the penitentiary.

This is the second time this case has been before us. The opinion on the other appeal is reported in 95 Tex. Cr. R. 476, 255 S. W. 192.

The sheriff observed defendant driving a buggy along the streets of Cameron. After he left the buggy, the sheriff went to it, and found under the seat four quarts of whisky wrapped in a sack. Defendant claimed to have bought it for medicinal purposes. He testified that his family physician had advised him to use whisky, eggs, and sweet milk, and sleep in the open. The doctor testified that he had at one time advised defendant to use some whisky for medicinal purposes, but had never given him a prescription for any. On cross-examination it developed that this medical advice was given about 12 years ago at the time of open saloons.

Although the court granted 60 days after adjournment of the term to file bills of exception, and at defendant’s request gave an additional extension of 15 days, still we find no bills in the record.

Written objections were presented to the charge upon the issue of whether defendant was transporting the whisky for medicinal purposes. As framed, the charge may be subject to the criticism pointed out in Jones v. State, 96 Tex. Cr. R. 332, 257 S. W. 895, but the record does not call for a reversal on that account. Defendant requested, and the court gave, a special charge much more onerous than the one contained in the main charge upon the same subject, and under the doctrine of invited error is estopped from complaining of an instruction which was more favorable than one given at his instance. See authorities collated under section 1946, Branch’s Ann. P. C.

The judgment is affirmed.

On Motion for Rehearing.

We feel sure the criticism of the charge was properly disposed of in our former opinion. Relative to the contention that, because appellant testified he was transporting the whisky for medicinal purposes, the state is foreclosed on such issue, we would observe that neither the state nor the jury were bound to accept such evidence as true. The reasons are very fully stated in Hawkins v. State (No. 8599, opinion on rehearing, April 8, 1925; Tex. Cr. App.) 270 S. W. 1025.

The motion for rehearing is overruled. 
      ®^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     