
    DENT v. STATE.
    (No. 9960.)
    (Court of Criminal Appeals of Texas.
    March 31, 1926.)
    Criminal law <®=>778(5) — Instruction to acquit if jury finds beyond reasonable doubt that bottle of whisky was placed in defendant’s pocket and transported without knowledge of contents or transported for medicinal purposes only after learning its character held erroneous as tending to place burden of proving defense on defendant.
    Instruction to acquit defendant of transporting- liquor if jury finds beyond reasonable doubt that bottle of whisky was placed in defendant’s pocket and transported without knowledge that it was intoxicating, and that it was transported for medicinal purposes alone after learning it was whisky, held erroneous as tending to put burden of proving defense on defendant.
    Appeal from District Court, Knox County; J. H. Milam, Judge.
    J. H. Dent was convicted of transporting intoxicating liquor, and he appeals.
    Reversed and remanded.
    D. J. Brookreson, of Benjamin, for appellant.
    Sam D. Stinson, State’s Atty., of .Austin, and Robt. M. Lyles, Asst. State’s Atty.-, of feroesbeek, for the State.
   LATTIMORE, .J.

Conviction in district court of Knox county of transporting intoxicating liquor; punishment, one year in the penitentiary.

The state apparently had two theories in this case, viz. one that appellant transported a quantity of whisky in a car driven by him, and the other that at all events he transported a bottle containing a smaller quantity of intoxicating liquor. Appellant testified, and supported himself by the evidence of other witnesses, to the fact that when he left home and' went to the town of Goree on the occasion in question there was no whisky in the car, and that the bottle referred to was later put in his pocket by a man who appeared to be intoxicated, and who tried to induce appellant to buy something for Christmas. Appellant testified that, when- he refused, the man put a bottle of something in his overcoat pocket, saying that it was home beer, and that, without any knowledge or belief that it was intoxicating, he took a young man named Boone out to the suburbs of the tovvn, where they tasted the contents of the bottle and discovered that it was whisky. Appellant said he did not know at the time he drove out there that the bottle contained any intoxicating liquor.

The fifth paragraph of the court’s charge is as follows:

“If you should find from the evidence beyond a reasonable doubt that some person placed a bottle of whisky in the defendant’s pocket, and that thereafter the defendant and one Caldon So one got in the defendant’s car and drove out to the edge of the town therein, and that at the time the defendant drove out there he had no knowledge that the beverage in his pocket was intoxicating liquor, and if you further find from the evidence that, after learning said beverage was whisky, that he transported the same for medicinal purposes alone, then in that event you will not convict the defendant for transporting said bottle of whisky, or if you have a reasonable doubt as to any of these facts you will not convict him of transporting this bottle of whisky.”

This was excepted to because it transferred the burden of proof from the state to the accused, and required appellant to prove the facts relied upon by him as a defense, beyond a reasonable doubt. Said paragraph-sets out the only affirmative presentation of the ‘defensive theory which appears in the charge. To say the least, it is so confusing as that the jury might easily have been misled into believing that the burden was upon the accused to prove beyond a reasonable doubt that the contents of the bottle referred to was not intoxicating, and also that the same rule as to the burden of proof should be applied by the jury in considering the question as to whether he transported said bottle for medicinal purposes. We are unable to say that such a charge as that quoted does not affect injuriously the rights of the defendant. We believe it was erroneous. So believing, the judgment of the trial court will be reversed, and the cause remanded.

MORROW, P. J., absent. 
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