
    PETIT v. STATE.
    (No. 6510.)
    (Court of Criminal Appeals of Texas.
    Nov. 30, 1921.)
    1. Intoxicating liquors <&wkey;139 — Possession not unlawful, unless for the purpose of sale, under Dean Law.
    Possession of intoxicating liquor is not unlawful, under Acts 37th Leg. 1st and 2d Called Sess. (1921) c. 61, except it be “for the purpose of sale.”
    2. Intoxicating liquors <&wkey;2ll, 239(7) —Possession for purpose of sale must be charged in indictment and jury instructed thereon.
    An indictment under Acts 87th Leg. 1st and 2d Called Sess. (1921), e. 61, must charge that the possession of intoxicating liquors “was for the purpose of sale,” and the question of the purpose of the possession submitted to the jury in the charge.
    Appeal from District Court, Angelina County; L. D. Guinn, Judge.
    U. S. Petit was convicted of unlawfully possessing intoxicating liquor, and he appeals.
    Reversed, and prosecution dismissed.
    Denman & Collins, of Lufkin, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Angelina county of unlawfully possessing intoxicating liquor, and his punishment fixed at one year in the penitentiary.

Since the conviction of this appellant, what is known as the Dean Law (Acts 36th Leg. 1st and 2d Called Sess. c. 78) was amended at a special session of the 37th Legislature (Acts 1st and 2d Called Sess. c. 61). Prior to said amendment, section 1 of said Dean Law read as follows:

“That it shall be unlawful for any person, directly or indirectly, to manufacture, sell, barter, exchange, transport, export, receive, deliver, solicit, take orders for, furnish or possess, spirituous, vinous or malt liquors or medicated bitters, capable of producing intoxication, or any other intoxicant whatever, or any equipment for making such liquors, except for medicinal, mechanical, scientific or sacramental purposes.”

By said amendment said section was made to read as follows:

“That it shall be unlawful for any person, directly or indirectly, to manufacture, sell, barter, exchange, transport, export, deliver, take orders for, solicit, or furnish spirituous, vinous, or malt liquors, or medicated bitters capable of producing intoxication, or any other intoxicant whatever, or any equipment for making any such liquors, or to possess or receive for the purpose of sale any such liquors herein prohibited.”

An examination of the amended section, supra, makes it plain that at present the possession of intoxicating liquor is not unlawful under the terms of said act, except it be so possessed “for the purpose of sale.” In other words, the gist of the offense now is the purpose for which such possession is had. There can be no question but that an indictment for the offense, as now defined, must charge that such possession “was for the purpose of sale,” and that the question of the purpose of such possession must be submitted to the jury in the charge of the court. By reason of said amendment the law under which this prosecution was had must be held to have been repealed. Cox v. State, (No. 6423) 234 S. W. 531, decided at this term.

For the reasons therein given, this cause must be reversed, and the prosecution ordered dismissed. 
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