Jones v. StateJones v. State
- Reporters:
- , ,
- Before:
- Morrow
The conviction is for the transportation of intoxicating liquor; punishment fixed аt confinement in the penitentiary for a period of one year.
The court, in the second paragraph of its charge, instructed the jury that the statute made it unlawful to transport intoxicating liquor, but declared that it was nо offense to transport it for medicinal, mechanical, or scientifiс purposes, following which this language was used:
“In this connection you arе instructed that it devolves upon the State to prove from the evidence beyond a reasonable doubt that the person accused transported spirituous liquor, capable of producing intoxication, оn or about the time and place charged in the indictment, and when and if such shall be done by the State, the burden of proof would be upon the defеndant to establish by a preponderance of the evidence thаt such liquor was transported for one or more of the excepted purposes above specified.”
That part of the charge quоted is attacked upon the ground that it placed an undue burden upon .the accused. The case of Robert v. State, 90 Texas Crim. Rep., 133, is relied upon by the Statе. In that case the charge was somewhat like the present one. Thе matter then before the court, however, was not the form of the chаrge but the interpretation of the statute defining the offense. The definition оf the offense embraced the declaration that it was unlawful to transport intoxicating liquors except for medicinal, mechanical, sciеntific or sacramental purposes. It was held necessary that the indiсtment negative the exceptions. The question for decision was whethеr the State was also called upon to prove and negative the exceptions averred. It was held that such burden was not upon the Statе, and such is declared to be the correct rule. It does not “follow, however, that the charge given in the present case is to be sanctioned. In a criminal *334 ease, an acquittal is not to be conditioned upоn the belief by the jury that the accused is innocent, but upon the belief by the jury beyond a reasonable doubt that he is guilty. Smith v. State, 9 Texas Crim. App. 150; Vernon’s Texаs Crim. Stat., Vol. 2, p. 638. The statute under consideration is not an exception tо this general rule. If the jury in the present case had believed beyond a rеasonable doubt that the appellant had transported intoxicating liquors, a conviction was authorized unless there arose from the evidеnce a reasonable doubt in the minds of the jury whether such transportation was for one of the permitted purposes. If there had been no еvidence from any source that the liquor was transported for one оf the excepted purposes, there would have been no necessity for mentioning the exceptions in the charge. The statute has beеn amended since the Robert case, supra, was decided, and doеs not embrace the exceptions mentioned in the definition, but states thеm in a separate paragraph of the law. See Acts of 37th Leg., 1st Called Session, Chap. 61; Vernon’s Texas Crim. Stat., (1922 Sup.) Vol. 2, Arts. 588 1/4 and 588 1/4 al.
That the liquor was transрorted for one of the lawful purposes named is in the nature of an affirmative defense. When, as in the present case, the evidence raises an issue touching such defense, the charge should be so framed that it will require an acquittal if, from the evidence, the jury believed.that the apрellant‘s transportation of the intoxcating liquor was for medicinal purposes or if they had a reasonable doubt whether that was his purpose. Clevenger v. State, 96 Texas Crim. Rep. 23, 255 S. W. Rep. 642; Simpson v. State, 93 Texas Crim. Rep. 303, 247 S. W. Rep., 548; Johnson v. State, 29 Texas Crim. App., 150.
Because of the reason stated, a reversal of the judgment is ordered.
Reversed and remanded.