Plaintiff in error was convicted in the county court of Kiowa county at the January, 1910, term, upon a charge of transporting whisky from the south side of Main street in the town of Manitou, Tillman county, Oklahoma, to the north side of said street in said town in Kiowa county, Oklahoma. A number of errors are complained of in the petition in error and brief; among others, error of the trial court in giving the following instruction:
"The defendant is always presumed to be innocent until his guilt is established by competent testimony beyond a reasonable doubt, and unless the evidence in this case does this, you will find the defendant `not guilty,' but under the plea of the defendant in this cause, it will be the duty of the defendant to show to your satisfaction that the whisky was an interstate shipment, and that he was conveying the same to his own home, after having received the same from the interstate shipper."
The testimony tends to show that plaintiff in error was a farmer living near Manitou; that he had bought a shipment of fruit trees from a nursery at McKinney, Tex.; that he had gone to town for the purpose of receiving the fruit trees and when they were unpacked three pints of whisky were found in a package in the shipment with the words "Presented to John Potts", written thereon. He took the whisky and the trees, and had not arrived at home when arrested. The instruction of the court, supra, based upon this record, is prejudicial error. The judgment is reversed and the cause remanded with directions to the trial court to grant a new trial. *Page 688