
    GORDON v. STATE.
    (No. 9778.)
    (Court of Criminal Appeals of Texas.
    Feb. 17, 1926.)
    Intoxicating liquors <&wkey;239(2) — Refusal to submit issue raised by evidence whether liquor was intoxicating held reversible error.
    Refusal to submit defensive issue raised by evidence, whether liquor found in defendant’s possession was intoxicating, held, reversible error.
    Commissioners’ Decision.
    Appeal from District Court, Wharton County; M. S. Munson, Judge.
    Henry Gordon was convicted of transporting intoxicating liquor, and he appeals.
    Reversed and remanded.
    J. H. H. Dennis, of Wharton, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BAKER, J.

The appellant was convicted in the district court of Wharton county for the offense of transporting intoxicating liquor, and his punishment assessed at one year in the penitentiary.

The record discloses that the officers discovered appellant with two quarts of what the state’s witnesses testified was corn whis-ky, and intoxicating. The appellant did not deny the possession of same, but contended and testified that it was not intoxicating. This is the only issue in the record as presented which we deem necessary to discuss. The learned court, in his charge to the jury,, wholly failed to submit this defensive issue, as to the intoxicating quality of the liquid in question, to which the appellant properly objected and excepted, and timely presented his special charges covering this phase of the case, which were refused by the court. We think this was error. Erwin v. State, 10 Tex. App. 700; Arenson v. State, 261 S. W. 787, 97 Tex. Cr. R. 430; Stroehmer v. State, 272 S. W. 163, 100 Tex. Cr. R. 90; Garcia v. State (Tex. Cr. App.) 273 S. W. 856.

For the error above discussed, the judgment of the trial court is reversed and remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the court. 
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