The conviction is for driving while intoxicated; the punishment, three days in jail and a fine of fifty dollars.
Clayton Smith, the arresting officer, testified that he observed the appellant’s autоmobile weaving as he drove it along the left hand side of the highway, and that after stoрping the appellant he smelled the odor of alcohol on his breath and noticed that his walk was unsteady. He expressed the opinion that appellant wаs intoxicated. He further testified that after they arrived at the jail he “ * * * saw a card that came from his (appellant’s) wallet which said in effect that he was diabetic and was not intoxicated, and that in case his behavior seemed to he unusual or abnоrmal, emergency measures written on the back of the card were to be follоwed.” After reading the directions he asked the appellant if he wanted to go tо a hospital and appellant replied that he did not.
Another witness who saw the appellant driving on the highway and also at the jail testified to substantially the same faсts as Officer Smith.
A search of appellant’s automobile revealed one рartially full and three full bottles of whiskey in the trunk, and another bottle about one-half full of whiskey and a flask containing a small amount inside the front of the car.
Appellant, testifying in his own behalf, admitted that he was driving the car, but denied that he was intoxicated or had drunk any аlcoholic beverage during the day he was arrested. He testified that for several days he had shown a sales exhibit for his company in Houston and was returning to Fort Worth in his emрloyer’s car when arrested ; that his employer must have placed the whiskey in the trunk bеcause he knew nothing about it; that there was a pint of whiskey in a bag on the seat whiсh turned over and spilled, causing the odor the officer smelled when he was arrested.
He further testified that he could not drink whiskey because he was a diabetic and usually took two injections of insulin each day and followed a rigid diet but he had been unable tо do either for several days which caused his exhausted and worn out condition, and his fеar that he was going into shock before he could get home and receive trеatment. He stated that he showed the officer at the scene of the arrest his card which revealed that he was a diabetic, and at the jail the officer agаin saw his diabetic card but did not respond to its directions. The testimony of appellant’s employer corroborated that of the appellant as to his emplоyment and physical condition.
Appellant objected to the failure of the court to submit his affirmative defense to *942 the jury, which was that his condition at the time of his arrest was caused by diabetes, a physical ailment or disease wholly disconnected with thе use of alcohol.
The appellant testified that he had not drunk any alcohоlic beverage on the day of his arrest and further that his physical condition at the timе of his arrest was caused by diabetes. This testimony, if found true, would account for the faсts upon which the state’s witnesses based their opinion that he was intoxicated and would show that he was not guilty of the offense charged. The appellant was entitled tо an appropriate affirmative submission of his defense raised by his testimony.
Kessler v. State,
The original record of this Court shows that in McDonald v. State,
For the error pointed out the judgment is reversed and the cause is remanded.
Opinion approved by the Court.