
    RANDELL v. STATE.
    (No. 9658.)
    (Court of Criminal Appeals of Texas.
    Dec. 9, 1925.)
    1. Intoxicating liquors &wkey;>239(4) — Refusal of charge that, if liquor was not possessed for purpose of sale, defendant should be acquitted, held error.
    In. a prosecution for possession of liquor, where accused was found in possession of more than quart of liquor, refusing instruction affirmatively charging jury that if liquor was not possessed for purpose of sale, or if they had reasonable doubt thereof, to acquit defendant, held error.
    2. Witnesses <&wkey;36l(2) — Refusal of court to allow accused to explain circumstances of former conviction for misdemeanor theft held error.
    Refusal of court, in prosecution for possessing liquor, to allow accused to make explanation of circumstances under which he had been adjudged guilty and paid a fine for misdemean- or theft, held error.
    3. Criminal law <&wkey;407(l) — Accused should not be interrogated as to silence when arrested.
    Accused should not be interrogated as to his silence when arrested, as his silence cannot be used in evidence against him.
    Commissioners’ Decision.
    Appeal from District Court, Montague County; Vincent Stine, Judge.
    Monroe Randell was convicted of unlawful possession of intoxicating liquor, and he appeals.
    Reversed and remanded.
    Donald & Donald and Chancellor & Bryan, all of Bowie, for appellant
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The offense is unlawful possession of intoxicating liquor, and the punishment is one year in the penitentiary.

The state’s testimony shows that appellant was found in possession of more than a quart of intoxicating liquor. The appellant’s testimony is sufficient, if true, to account for such possession in a manner consistent with his innocence of any intention to sell it. In this state of the record, the appellant requested the court to affirmatively charge the jury in effect that if the liquor was not possessed by the defendant for the purpose of sale, or if they had a. reasonable doubt as to such possession being for the purpose of sale, to acquit the defendant. This charge the court refused, and the matter was not presented in an affirmative manner in any part of the court’s instructions. This was error. Davis v. State, 63 Tex. Cr. R. 484, 141 S. W. 93; Grant v. State, 65 Tex. Cr. R. 266, 143 S. W. 929; Jones v. State, 96 Tex. Cr. R. 332, 257 S. W. 895; Garcia v. State (Tex. Cr. App.) 273 S. W. 856, and cases there cited.

Appellant also complains because the court refused to allow him to mate an explanation of the circumstances under which he had been adjudged guilty and paid a fine for misdemeanor theft.. This action of the court was also error. Scott v. State (Tex. Cr. App.) 47 S. W. 531; Tippett v. State, 37 Tex. Cr. R. 186, 39 S. W. 120.

On another trial appellant should not be interrogated as to his silence when arrested. Under the authorities in this state, his silence cannot be used in evidence against him. Skirlock v. State, 100 Tex. Cr. R. 178, 272 S. W. 782.

Other matters complained of will probably not arise in the same form on another trial; but for the errors above discussed, the judgment of the trial court is reversed and the cause 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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