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 *Page 333 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 Tex.Crim. Rep., 245 S.W. Rep., 241.
Because of the erroneous instruction to the jury, the judgment is reversed and the cause remanded.
Reversed and remanded.