The appellant was convicted in the District Court of Hopkins County for the offense of manufacturing liquor and his punishment assessed at confinement in the penitentiary for a term of one year.
The evidence is amply sufficient to support the verdict.
Appellant complains at the action of the court in charging on the burden of proof, in that the court charged that the burden was on the State except that the burden of proving that the manufacture of intoxicating liquor for medicinal purposes is upon the defendant. The exact question here presented was decided adversely to the appellant's contention in the case of Torres v. State, 272 S.W. 461. We quote the following from the opinion in that case: "In the latter part of paragraph 3, the court told the jury that the burden was on the appellant to show that the transportation of the liquor was for medicinal purposes. If this charge had been left standing alone, we think it would have been subject to the objection directed at it, but immediately preceding it in the same paragraph the jury had been told that it was not unlawful to transport intoxicating liquor for medicinal purposes, and, if they believed appellant transported the liquor for such purpose, or, if they had a reasonable doubt thereof, they should acquit. Taking the entire paragraph, we think it not objectionable. Clevenger v. State, 96 Tex.Crim. Rep., 255 S.W. 622; Jones v. State, 96 Tex. Crim. 332,
*Page 519 257 S.W. 895; Johnson v. State (Tex.Crim. App.) 266 S.W. 155, and authorities cited."
In the instant case just preceding the charge complained of the court instructed the jury that if they believed from the evidence that the defendant Lundy Carter did manufacture intoxicating liquor at the time and place alleged, yet if they further believed that he manufactured the same for medicinal purposes, that is for use as a medicine for his wife for the relief of physical ailments, or if they had a reasonable doubt as to whether his purpose in manufacturing such liquor was for medicinal use, to acquit him. Under the authority of the Torres case, supra, we hold that no reversible error is shown by reason of the giving of the charge complained of.
Appellant also complains at the action of the court in overruling his motion for a new trial based upon the allegation that the jury commented upon and considered appellant's failure to testify. The facts concerning this matter are sharply contested and we are not in a position to hold that they show any more than a mere passing reference to said failure to testify, if indeed they are sufficient for this purpose. The appellant received the lowest penalty and we cannot say that the trial court abused its discretion under the facts disclosed by this record in refusing a new trial. Probest v. State,133 S.W. 263; Powers v. State, 154 S.W. 1020; Espinoza v. State,165 S.W. 208; Gutierrez v. State, 272 S.W. 780.
Appellant also complains at the court's action in overruling his motion for a new trial because one of the jurors had been duly adjudged a lunatic and had been confined in the insane asylum at Terrell, and had never been discharged therefrom, and it is claimed that appellant and his attorneys did not learn of this fact until after the trial. Art. 692, Vernon's C. C. P. Sect. 5, gives as one ground for a challenge for cause the fact that the juror is insane. Art. 693 Vernon's C. C. P. provides that other evidence may be heard in support of or against a challenge for cause than the answers of the juror. Art. 697 provides that the court is the judge of the qualification of the juror. In this instance no challenge was made for the reason that the appellant was unaware that the juror had been adjudged insane until after the trial. It was a question of fact for the court to decide as to whether or not the juror was insane and the judgment of the court adjudged him so was not conclusive. He may have recovered therefrom and been of normal mind, and in order to show that he had recovered *Page 520 it was not necessary to show that he had not been legally discharged from the asylum. Evidence was heard upon this issue and the same was conflicting. The evidence for the State was amply sufficient if believed to show that the juror was of sound mind. Under this condition of the record, we are not authorized to say that the court abused his discretion in refusing to grant a new trial on account of this matter.
Finding no error in the record, it is our opinion that the judgment of the trial court should be in all things affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING