Opinion
No. 12550.
Delivered May 22, 1929.
Sale of Intoxicating Liquor — Charge of Court — On Defensive Issue — Erroneously Omitted.
Where on a trial for the sale of intoxicating liquor, the issue of a sale for medicinal purposes was squarely raised by the testimony, it was imperative upon the court to submit such defensive issue to the jury. See Thornton v. State, 13 S.W.2d 369 and Valdez v. State, 10 S.W.2d 549.
Appeal from the District Court of Mitchell County. Tried below before the Hon. Fritz R. Smith, Judge.
Appeal from a conviction for the sale of intoxicating liquor, penalty, two years in the penitentiary.
The opinion states the case.
S. H. Millwee of Colorado, and W. V. Dunnam of Waco, for appellant. On failure to charge on defensive issue, appellant cites: Thornton v. State, 13 S.W.2d 369; Valdez v. State, 10 S.W.2d 549.
A. A. Dawson of Canton, State's Attorney, for the State.
Offense, the unlawful sale of intoxicating liquor; penalty two years in the penitentiary.
Prosecuting witness with the help of one Dozier purchased a bottle of whiskey from appellant. It is shown in Bill of Exception No. 5 that exception was properly made to the Court's main charge in failing to submit the issue of whether or not the whiskey in question was sold for medicinal purposes. The Court in this bill certified as a fact that "the issue was squarely raised by the testimony as to whether or not such whiskey was for medicinal purposes." If this recital be true, it was imperative upon the Court to submit such defensive issue to the jury. We are bound by the recitals of the bill, and presuming them to be true, as we must, the action of the Court was error. Thornton v. State, 13 S.W.2d 369; Valdez v. State, 10 S.W.2d 549.
The judgment is reversed and cause remanded.
Reversed and remanded.
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.