
    John F. White v. The State.
    No. 7616.
    Decided January 31, 1923.
    Unlawfully Transporting Intoxicating Liquor — Medicinal Purposes.
    Where the defendant introduced testimony that he was sick with a malady which required the use of whisky and which the doctor had advised him to take, and that the whisky in his possession was for medicinal purposes for his own use, but the court instructed the jury that these facts would not constitute a defense unless defendant had procured from the Comptroller a permit to transport the article, same was reversible error. Following Mayo v. State, 245 S. W. Rep., 341.
    Appeal from the District Court of Lamar. Tried below before the Honorable Ben H. Denton.
    Appeal from a conviction of unlawfully transporting intoxicating liquor; penalty, two years imprisonment in the penitentiary.
    
      Charles Roach and B. B. Sturgeon, for appellant. — Cited, cases in opinion.
    
      R. G. Storey, Assistant Attorney General, for the State.
   MORROW, Presiding Judge.

The conviction is for unlawfully transporting intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of two years.

The appellant had obtained a gallon of whisky and was walking in the direction of his automobile about forty feet distant when he was arrested. He interposed the defense that he was sick with a malady which required the use of whisky and that the doctor had advised him -to take it; that the whisky in his possession was for medicinal purposes for his own use. His testimony was supported by the testimony of his physician.

The court, in his charge, instructed in substance that these facts would not constitute a defense unless the appellant had procured from the State Comptroller a permit to transport the article. The State’s counsel concedes the inaccuracy of this ruling. (See Const., Art. 20, Sec. 16.)

The same question was before the court in the case of Mayo v. State, 92 Texas Crim. Rep., 624, 245 S. W. Rep., 241.

Because of the erroneous instruction to the jury, the judgment is reversed and the cause remanded.

Reversed and remanded.  