Fuller v. State , 100 Tex. Crim. 474 ( 1925 )

Conviction is for transporting intoxicating liquor. Punishment, fifteen months in the penitentiary.

This is the second time this case has been before us. The opinion on the other appeal is reported in 95 Tex. Crim. 476, 255 S.W. Rep. 192.

The sheriff observed defendant driving a buggy along the streets of Cameron. After he left the buggy the sheriff went to it and found under the seat four quarts of whiskey wrapped in a sack. Defendant claimed to have bought it for medicinal purposes. He testified that his family physician had advised him to use whiskey, eggs and sweet milk, and sleep in the open. The doctor testified that he had at one time advised defendant to use some whiskey for medicinal purposes but had never given him a prescription for any On cross-examination is developed that this medical advice was given about twelve years ago at the time of open saloons.

Although the court granted sixty days after adjournment of the term to file bill of exception, and at defendant's request gave an additional extension of fifteen days, still we find no bills in the record.

Written objections were presented to the charge upon the issue of whether defendant was transporting the whiskey for medicinal purposes. As framed the charge may be subject to the criticism pointed out in Jones v. State, 96 Tex. Crim. 332, 257 S.W. Rep. 895, but the record does not call for a reversal on that account. Defendant requested and the court gave a special charge much more onerous than the one contained in the main charge upon the same subject, and under the doctrine of invited error is estopped from complaining of an instruction which was more favorable than one given at his instance. (See authorities collated under Sec. 1946, Branch's Ann. P. C.)

The judgment is affirmed.

ON MOTION FOR REHEARING.