
    CARRIER v. STATE.
    (No. 8830.)
    (Court of Criminal Appeals of Texas.
    April 15, 1925.)
    1. Intoxicating liquors <&wkey;239(l) — Defense that liquor transportation was for medicinal purposes should have been submitted in an affirmative manner.
    In prosecution for transporting intoxicating liquors, defendant’s defense that transportation was for medicinal purposes should have been submitted in an affirmative manner.
    2. Criminal law <&wkey;778(I) — Intoxicating- liquors <&wkey;224 — Burden not on defendant to prove innocence, and proof as to transportation for medicinal purposes raising reasonable doubt was sufficient for acquittal.
    In prosecution for transporting intoxicating liquor, burden was not on defendant to prove his innocence, he being entitled to an acquittal if evidence left a reasonable doubt in minds of jury whether, transportation was for medicinal purposes as claimed, and it was error to fail to so charge.
    —r.Ti'fvr other cases see same topic and KEY-NUMBER in all Key-NumDered Digests and Indexes
    Appeal from District Court, Jefferson" County; Geo. C. O’Brien, Judge.
    Leo nee Carrier alias Buck Carrier was convicted of transporting intoxicating liquors, and he appeals.
    Reversed and remanded.
    Blain & Jones, of Beaumont, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

Transporting intoxicating liquor is the offense; punishment fixed at confinement in the penitentiary for a period of five years.

The evidence shows without controversy that the appellant was transporting a number of quarts of whisky in an automobile bearing a Louisiana number, which car was near the border and going in the direction of Louisiana.

Appellant testified that he had been given some money by a druggist who ran a drug store near Lafayette, La.; that the druggist sent the appellant for some whisky to be used in the drug store for medicinal purposes; that he obtained the whisky from a ship at Sabine, Texl; and that at the time of his arr.est he was taking the whisky to the druggist for the purpose stated.

The court instructed the jury that it was unlawful to transport whisky, but that it was not unlawful to transport it for medicinal purposes, “but the burden rests upon the defendant to prove that he was carrying it for medicinal purposes.”

Exceptions were addressed to the court’s charge in due time, in one of which the complaint was made of the failure of the court, in connection with the charge submitting the matter to the jury for finding, to tell them that if the liquor was transported for medicinal purposes, or if they had a reasonable doubt as to whether the appellant was transporting whisky for medicinal purposes, they would acquit him.

Objection was also urged against the charge because it failed to instruct the jury upon the appellant’s affirmative defensive theory, namely, that he was transporting the whisky for medicinal purposes. Taken as a whole, we think the charge is somewhat confusing. His defense should have been submitted in an affirmative manner. Clevenger v. State, 96 Tex. Cr. R. 23, 255 S. W. 622, and cases cited. The burden did not rest upon the appellant to prove his innocence. He was entitled to an acquittal if from any source there was evidence in the record which left in the minds of .the jury a reasonable doubt as to whether he was transporting the liquor for medicinal purposes. This principle of law, couched in appropriate language, should have been given in the charge to the jury. Jones v. State, 96 Tex. Cr. R. 332, 257 S. W. 895, and cases there cited.

State’s counsel concedes the charge to be faulty in the particulars mentioned.

For the reason stated, the judgment is reversed, and the cause remanded.  