
    TREGLUDE v. STATE.
    (No. 7932.)
    (Court of Criminal Appeals of Texas.
    Dec. 5, 1923.)
    1. Intoxicating liquors &wkey;>!3l — Charge to consider manufacture for medicinal purposes only in mitigation held error.
    In prosecution for manufacturing spirituous liquor, it was error to instruct to consider testimony that defendant did not manufacture to sell, but that it was his intention to use it only for medicinal purposes, only in mitigation of the penalty.
    2. Intoxicating liquors &wkey;>l3l — Requested charge held proper.
    In prosecution for manufacturing spirituous liquor, an instruction that, if defendant manufactured for medicinal purposes only, or if there was reasonable doubt as to that effect, to acquit him, was proper and should have been given.
    Appeal from District Court, Wichita County; P. A. Martin, Judge.
    Roland Treglude was convicted of manufacturing spirituous liquors containing more than one per cent, alcohol, and he appeals.
    Reversed and remanded.
    Eischer & Fischer and Davenport, Cummings & Thornton, all of Wichita Falls, for appellant.
    Tom Garrard, State’s Atty., of Midland, and Grover C, Morris, Asst. State’s Atty., of Devine, for the State.
   H-AWKINS,, J.

Conviction is for manufacturing spirituous liquor containing more than 1 per cent, of alcohol. Punishment — confinement in the penitentiary one year.

The court charged the jury as follows:

“The defendant in this case has testified in effect that the liquor manufactured by him was not. made for the purpose of sale, that it was his intention to use the same only for medicinal purposes, and that he had been advised by physicians to use it for that purpose. Now, you are instructed that you can only consider this testimony in mitigation of such penalty as you may impose upon the defendant, if you And him guilty, and not as a defense, as under our law intoxicating liquor cannot be legally manufactured in this state, for any purpose, without a permit from the comptroller of public accounts.”

Timely exception was reserved to this charge, and a special charge in lieu thereof requested, which reads:

“That if you believe from the evidence that the defendant manufactured said liquor for medicinal purposes only, or if you have a reasonable doubt as to that effect, you will acquit him and say by your verdict not guilty.”

The court committed error in charging as he did. The special charge contained the law and should have been given. Burciago v. State, 88 Tex. Cr. R. 576, 228 S. W. 562; Mayo v. State, 92 Tex. Cr. R. 624, 245 S. W. 241; Ellis v. State, 93 Tex. Cr. R. 322, 247 S. W. 509; Tonnahill v. State (Tex. Cr. App.) 250 S. W. 1029. See, also, Horak v. State (No. 7363) 255 S. W. 191, opinion October 17, 1923, not yet officially reported.

Upon the authorities cited, our state’s attorney has correctly confessed error.

The judgment is reversed, and the cause remanded. 
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