Wood v. State

Court of Criminal Appeals of Texas

Wood v. State

297 S.W.2d 190, 164 Tex. Crim. 139, 1957 Tex. Crim. App. LEXIS 2055

CourtCourt of Criminal Appeals of Texas

DecidedJanuary 9, 1957

DocketNo. 28,680

StatusPublished

Cited by1 cases

This text of 297 S.W.2d 190 (Wood v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wood v. State, 297 S.W.2d 190, 164 Tex. Crim. 139, 1957 Tex. Crim. App. LEXIS 2055 (Tex. 1957).

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Opinion

BELCHER, Judge.

The conviction is for the possession of whiskey 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 whiskey.

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

Appellant, testifying in his own behalf, admitted the possession of the whiskey as shown by the. testimony of the officers. He testified that he did not possess the whiskey 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 whiskey 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 whiskey 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 whiskey 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 whiskey for the purpose of sale. The state therefore relied pn the presumption created by Art. 666-23a (2), Vernon’s Ann. P.C., in order to convict. This being so, [141]*141the appellant was entitled to have the jury told, in the light of his testimony, that he would not be guilty if he possessed the whiskey for his own use or for medicinal purposes. Williams v. State, 139 Texas Cr. Rep. 35, 138 S.W. 2d 807; Nave v. State, 146 Texas Cr. Rep. 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.

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BELCHER, Judge.

The conviction is for the possession of whiskey 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 whiskey.

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

Appellant, testifying in his own behalf, admitted the possession of the whiskey as shown by the. testimony of the officers. He testified that he did not possess the whiskey 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 whiskey 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 whiskey 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 whiskey 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 whiskey for the purpose of sale. The state therefore relied pn the presumption created by Art. 666-23a (2), Vernon’s Ann. P.C., in order to convict. This being so, [141]*141the appellant was entitled to have the jury told, in the light of his testimony, that he would not be guilty if he possessed the whiskey for his own use or for medicinal purposes. Williams v. State, 139 Texas Cr. Rep. 35, 138 S.W. 2d 807; Nave v. State, 146 Texas Cr. Rep. 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.

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297 S.W.2d 190, 164 Tex. Crim. 139, 1957 Tex. Crim. App. LEXIS 2055, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wood-v-state-texcrimapp-1957.

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