
    Chester WOOD, Appellant, v. The STATE of Texas, Appellee.
    No. 28680.
    Court of Criminal Appeals of Texas.
    Jan. 9, 1957.
    C. S. Farmer, Waco, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for the possession of whisky for the purpose of sale in a dry area; the punishment, a fine of $250.

The testimony of two officers of the Texas Liquor Control Board and two police officers of the City of Waco shows that under the authority of a search warrant they searched appellant’s residence and his automobile. Their testimony further shows that they found in said residence and automobile six pints, five fifths, and two half-pints of whisky.

Proof was offered that McLennan County was a dry area wherein it was unlawful to sell whisky.

Appellant, testifying in his own behalf, admitted the possession of the whisky as shown by the testimony of the officers. Pie testified that he did not possess the whisky for the purpose of sale, but had it for his own personal use. He further testified that he suffered from bronchitis, had difficulty in breathing, and had been drinking whisky for a long time in order to relieve his hard breathing; and that he had been advised by a physician that if he would drink some whisky it would relieve his breathing.

Appellant timely objected to the failure of the court to submit his affirmative defense to the jury that if he possessed the whisky in question for his own personal use and for medicinal purposes to find him not guilty.

There was no evidence, direct or circumstantial, that the appellant possessed this whisky for the purpose of sale. The state therefore relied on the presumption created by Art. 666-23a(2), Vernon’s Ann. P.C., in order to convict. This being so, the appellant was entitled to have the jury told in the light of his testimony that he would not be guilty if he possessed the whisky for his own use or for medicinal purposes. Williams v. State, 139 Tex.Cr.R. 35, 138 S.W.2d 807; Nave v. State, 146 Tex.Cr.R. 372, 175 S.W.2d 419, and cases there cited.

For the error pointed out the judgment is reversed and the cause is remanded.

Opinion approved by the Court.  