
    CLEVENGER v. STATE.
    (No. 7732.)
    (Court of Criminal Appeals of Texas.
    Oct. 3, 1923.
    Rehearing Granted Nov. 14, 1923.)
    1. Criminal law <&wkey;409l (8) — Bill of exceptions held to present no error.
    A hill complaining of the statement of the prosecuting attorney in argument to the effect that accused had told a different story to the officer when he was caught with possession of the liquor held, to present- no error where it did- not negative the fact that the argument related to part of the evidence in the case.
    ' On Motion for Rehearing.
    2. Intoxicating liquors <&wkey;>236(20) — Accused not required to "prove truth of his affirmative defense liquor was purchased for medicinal purposes, proof raising reasonable doubt being sufficient.
    Where, in a prosecution for unlawfully transporting liquor, accused interposed affirmative defense that he purchased the whisky for medicinal purposes,.the Burden was not on him to prove its truth, it being required only that the evidence be such as to establish such facts as would leave in the minds of the jury a reasonable doubt as to its truth, and hence it was error to refuse to instruct the jury to acquit if they believed he transported the liquor for medicine “or had a reasonable doubt as to whether that was his purpose in transporting it.”
    ©=>For other oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes.
    Appeal from District Court, Angelina County; L. D. Guinn, Judge.
    Joe T. Clevenger was convicted of unlawfully- transporting intoxicating liquor, and appeals.
    Reversed and remanded.
    Poston & Seale, of Dufkin, Tom E. Coleman, of Woodvillé, and Seale & Denman and Edgar H. Johnson, all of Nacogdoches, for appellant.
    W. A. Keeling, Atty. Gen., and C. L. Stone, Asst. Atty. Gen., for the. State.
   MORROW, P. J.

Conviction is for the unlawful transportation of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of one year.

Appellant had in his possession while riding horseback along the public road two quarts of whisky tied to his saddle. He declared in his testimony that he was taking the whisky to his home for medicinal purposes. This issue, thus raised, was submitted to the jury, and they were instructed that if he was carrying the whisky to his home for medicinal purposes an acquittal should result. ■

There is. a bill complaining of .the statement of the prosecuting attorney in argument to the effect that'appellant had told a different story- to the officers when he was caught. We find nothing in the bill which negatives the fact that the argument related to part of the evidence in the case. The bill, therefore, reveals no error.

The judgment is affirmed.

On Motion Eor Rehearing.

Appellant testified that he purchased two quarts of whisky which he had in his possession for the purpose of using it for medicine; that he had been advised to put bitter apple in whisky as a remedy for chills and fever; that during the past two years some of the members of his family had been ailing with that malady most of the time, and he had been advised that if it continued it might produce black jaundice; that the only reason for having the whisky in question was to take it to his home and fix it for medicine and use it for that purpose.

The- jury was instructed to acquit if they believed that the purpose of appellant in transporting the intoxicants was to use it for medicine.- The court was requested to instruct the jury to acquit if they believed he transported the liquor for medicine or had a reasonable doubt as to whether that was his purpose in transporting it. That the appellant had in his possession two quarts of whisky and was carrying it with him is shown without dispute. ' He interposes as an affirmative defense the facts stated above, going to show that his transportation of the whisky was to his home for medicinal purposes. The paragraph of the main charge of the court required the jury to believe this affirmative defense to be true as a predicate for an acquittal. The appellant’s innocence depended upon the defensive theory. The law did not impose upon him the duty of proving its truth, but it required alone that the evidence be such as to establish such facts as would leave in the minds of the jury a reasonable doubt as to its truth. The special charge would have complied with this rule. The following cases are in point: Sparlin v. State, 75 Tex. Cr. R. 102, 170 S. W. 307; Earnest v. State, 83 Tex. Cr. R. 41, 201 S. W. 175; James v. State, 86 Tex. Cr. R. 107, 215 S. W. 459; Goforth v. State, 92 Tex. Cr. R. 200, 241 S. W. 1027; Savage v. State, 92 Tex. Cr. R. 520, 244 S. W. 1002; Richardson v. State, 91 Tex. Cr. R. 318, 239 S. W. 218, 20 A. L. R. 1249. The authorities are reviewed at some length in Goforth’s Case, supra, and for a further review of them that case is referred to.

For- the reasons stated the motion for rehearing- is granted, the affirmance set aside, the judgment of the trial court reversed, and the cause remanded.  