
    MINOR RUSSELL v. STATE.
    No. A-5503.
    Opinion Filed May 15, 1926.
    (246 Pac. 489.)
    Pardue & Davis, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, P. J.

Minor Russell,, plaintiff in error, defendant in the trial court, was found guilty of having unlawful possession of one pint of whisky. His punishment was fixed at a fine of $50 and 60 days in jail.

The defendant was apprehended by peaee officers as he was in the act of concealing a pint of corn whisky in a pile of scrap lumber at the rear of his blacksmith shop. The defendant claimed that he was suffering with tuberculosis and that he had the whisky there, conveniently accessible, for his own personal use.

Over the objection of the defendant, the court gave the following instruction:

“You are instructed that the defense interposed by the defendant is not a legal defense, under the laws of the state of Oklahoma, and the fact that this defendant had said whisky in his possession upon the recommendation of a physician would not relieve this defendant, under the law, for having said whisky in his possession for an unlawful purpose.”

In the offense of illegal possession of intoxicating liquor there are two major elements, possession and an illegal intent to sell, bartér, give away, or otherwise furnish the liquor possessed, and both of these constituent elements of the offense must be supported by proof.

In this case there is no evidence sufficient to overcome the presumption of innocence that the defendant had this whisky for any illegal purpose, and there is no legal presumption to that effect. His defense was not that a physician had prescribed the whisky; that was merely an explanation, in the nature of corroboration of his claim that he had it for his personal use. His defense was that the purpose for which he had it was a legal purpose. Under the circumstances the instruction quoted was misleading and prejudicial.

The cause is reversed and remanded.

DOYLE and EDWARDS, JJ., concur.  