
    KING v. STATE.
    (No. 9719.)
    (Court of Criminal Appeals of Texas.
    April 7, 1926.)
    1. Criminal law <&wkey;595 (4)— Expected testimony that containers holding whisky, on premises of defendant, were there prior to defendant’s use of premises, held to- warrant continuance to secure absent witness.
    Expected testimony of absent witness that premises of defendant charged with possession of liquor had been used for saloon, and that containers containing small quantity of whisky were on premises in same condition prior to defendant’s use of premises, held material and to warrant continuance to secure witness temporarily out of county.
    2. Intoxicating liquors <&wkey;>233(2) — Admission of testimony of presence of coloring matter for whisky on defendant’s premises held not error, in prosecution for possession of liquor.
    In prosecution for possession of intoxicating liquor, admission of testimony that there was coloring matter which could be used -in coloring whisky on premises occupied by defendant held not error.
    3. Intoxicating liquors @=»233(I) — Admission oil testimony that defendant’s stock of groceries in building in which liquor was found was small held not error.
    In prosecution for possession of liquor, admission of testimony that defendant had only small stock of groceries in building in which liquor was found held not error.
    4. Intoxicating liquors <&wkey;233(2).
    In prosecution for possession of liquor, testimony of presence of other containers on premises with small quantity of whisky, described as “draining,” held proper.
    5. Criminal law <&wkey;448(7), 1170</2(3)— Question whether containers showed that they had contained a great deal more whisky was im-. proper as calling for conclusion but harmless where objection promptly sustained.
    In prosecution for possession of liquor, question whether containers did not show that they had contained d great deal more whisky was improper as calling for conclusion, but was not harmful where objection was promptly sustained.
    6. Criminal law i&wkey;824(4) — Failure to direct acquittal if liquor was possessed for any other purpose than for sale held not reversible error, where not requested, and instructions presented defensive theory and required finding of sale.
    Where defensive theory that liquor was possessed for medicinal purposes was accurately submitted to jury, and court charged that jury must find that liquor was possessed for purpose of sale, failure to direct acquittal if whisky was possessed for any other purpose than sale was not reversible error, in absence of specific request therefor.
    7.- Intoxicating! liquors <@=^239(7).
    Instruction to acquit if liquor was possessed for. any other purpose than for sale should be given in prosecution for possession of liquor, if requested.
    <¡&wkey;For other oases see same topic and KEY-NUMBER. in all Key-Numbered Digests and Indexes
    Appeal from District Court, Upshur County; J. R. Warren, Judge.
    John T. King was convicted of possession of intoxicating liquor, and he appeals.
    Reversed and remanded.
    W. O. Shoults, of Longview, and C. E. Florence, of Gilmer, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   MORROW, P. J.

The offense is the unlawful possession of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of four years.

Appellant had in his possession two bottles of whisky, one containing twelve and the other three ounces'. He explained his possession by testimony that he had obtained it on prescriptions and possessed it for medicinal purposes. The state combated this theory by circumstances. Upon its behalf there was testimony introduced going to show that there were many fruit jars and containers upon the premises occupied by the appellant, all of which were closed with corks or tops, and in some of which there was a small quantity of whisky.

Appellant sought a continuance of the case to secure a witness by the name of Lowry. Without stating the details, we are of the opinion, considered in the light of the record, that diligence to secure the testimony, although a subpcena had not been served, was sufficient, and that the purported absent testimony was material. The witness was temporarily out of the county and the securing of his attendance by delay was probable.

The total amount of the liquid found in the containers other than the two bottles mentioned was about an ounce. By the testi-nxony of Lowry, appellant expected to show that the premises in which the containers .were found had been used for the purpose of a saloon, at which time it was not under his control; that the containers mentioned had been upon the premises in the condition in which they were found by the state’s witnesses before, appellant used the premises in which his business was situated. The action of the court upon this application was brought forward in the motion for new trial, and it is believed, in the light of the evidence heard upon the trial and the manner of trial, that his motion should have been granted.

There are various other bills of exception in the record.

There was no error in receiving testimony that there was coloring matter which could be used in coloring whisky upon the premises occupied by the appellant; nor do we think error was committed in receiving the testimony to the effect that appellant’s stock of groceries situated in the building in question was small.

The testimony showing the presence of the other containers mentioned above, with a small quantity of whisky described as “draining,” was not improperly received.

The district attorney asked a witness if the containers did not show that they had contained a great deal more whisky. This question was improper, because it called for a conclusion ; but the court having promptly ■sustained the objection, it does not show harmful error.

The complaint of the failure of the court to charge upon circumstantial evidence is not tenable, as the law upon that subject is embraced in the main charge.

Paragraph 6 of the court’s charge is as follows:

“If the defendant possessed such liquor, but such possession was for medicinal purposes, then the possession would not be unlawful; so if you shall find the defendant possessed spirituous liquor capable of producing intoxication, as charged in the indictment, and as testified to by the witness, in the indictment, but if you further find that such possession was for medicinal purposes, or if you have reasonable doubt thereof, you will find him not guilty.”

Complaint is made of this charge upon the ground that it unduly limited the right of the appellant to possess liquor and is calculated to lead the jury to the conclusion that a conviction would be authorized if the liquor was possessed as a beverage or for mechanical, scientific, or sacramental purposes.

In paragraph 5 of the court’s charge, the jury was specifically told as a predicate for conviction that they must believe beyond a reasonable doubt that appellant possessed the intoxicating liquors, for the purpose of sale. It is true, as said in Veasey’s Case, 260 S. W. 1054, 97 Tex. Cr. R. 299, that it rested upon the state to prove that appellant possessed the intoxicating liquor for the purpose of sale, and that if he had it for any other purpose he would not be guilty. The charge given by the court in Veasey’s Case, supra, was faulty and much more x*estrictive than that in the present case. In it the jury was given to understand that appellant’s acquittal .would be dependent upon their belief that he possessed the liquor solely for his own use as medicine in case of sickness.

In the present case, the appellant's defensive theory, namely, that he possessed the whisky for medicinal purposes, was accurately submitted to the jury, coupled with an instruction upon reasonable doubt. It would have been appropriate that the jury be instructed that if the whisky was possessed for any other purpose than for sale, an acquittal should result; but upon the record and the charge as given, it is not believed that the failure to so instruct the jury requires a reversal. See Morris v. State (Tex. Cr. App.) 279 S. W. 273. If such an instruction had been specifically requested, the coui-t should, and doubtless would, have given it. See Davis v. State, 275 S. W. 1042, 101 Tex. Cr. R. 327; Walden v. State, 272 S. W. 139, 100 Tex. Cr. R. 584.

Because of the refusal to grant a new trial, the judgment is reversed and the cause remanded.  