In the motion, attention is directed to the paragraph of the court's charge in these words:
"You are further instructed that if the State shows that a party sold intoxicating liquor it rests upon the party selling to show that he sold such intoxicating liquor for either medicinal, mechanical, scientific or sacramental purposes."
There was a timely exception to this paragraph upon the ground that it was misleading in that it submitted to the jury an issue not raised by the evidence. The State's testimony was to the effect that the appellant sold whiskey to he purchaser named in the indictment. The testimony introduced by the appellant controverted the alleged fact of the sale but presented no theory of justification, if in fact a sale was made. Under such circumstances, the charge in question was manifestly upon an issue not raised by the evidence, and in the opinion of the writer, it was calculated to mislead the jury by *Page 394 impressing them with the view that in the absence of justifying evidence, a conviction must result. The principle that the charge of the court must conform to the allegations of the indictment, be applicable to and limited by the evidence, is asserted and emphasized by many authorities and denied, so far as the writer is informed, by none. See collation of decisions of this court in Michie's Ency. Digest of Texas Rep., Vol. 4, p. 561. As illustrative of the announcement upon the subject, we take from the opinion of this court, written by Judge Davidson, in the case of Thomas v. State, 34 Tex. Crim. 481 :
" 'If the court assumes and charges on a theory not raised or indicated by the evidence, it is radical error, and fatal to the conviction.' Ross v. The State, 10 Texas Crim. App., 455; Taylor v. The State, 13 Texas Crim. App. 184; Hardin v. The State., Id., 192; Stewart v. The State, 15 Texas Crim. App. 598; Lynch v. The State, 24 Texas Crim. App., 350. 'However correct a principle of law may be in the abstract, it is error to give it in charge where there is a total want of evidence to support the phase of the case to which it is applied.' Conn v. The State, 11 Texas Crim. App., 390; Lynch v. The State, 24 Texas Crim. App., 350. A charge should contain the law of the case; that is, the law applicable to the indictment and evidence adduced on the trial of the case."
In many recent cases involving the same statute as that upon which the present prosecution is founded, attention has been drawn to the rule which has just been stated. Deshazo v. State, 262 S.W. Rep. 764. The Robert's case, 90 Tex.Crim. Rep., is not regarded by the writer as being in conflict with the rule mentioned. In that case the point under consideration was the construction of a statute which has since been amended in the particulars described in Jones v. State, 257 S.W. Rep. 895, and other cases. In a case where there is evidence suggesting that a sale of intoxicating liquor was for one of the purposes permitted under the Constitution and statute, it is proper to give an instruction informing the jury that if they believe from the evidence, beyond a reasonable doubt, that a sale of intoxicating liquor was made by the accused, a conviction would be authorized unless the evidence raises in their minds a reasonable doubt as to whether the sale was for the permitted purposes to which the evidence is addressed. But where there is no evidence that the sale was made for one of the permitted purposes, no instruction should be given upon that subject for the reason that it submits to the jury an issue which the evidence does not raise. See Walker v. State, 267 S.W. Rep. 760; Johnson v. State, 266 S.W. Rep. 155, especially page 157.
The failure to observe the practice would not warrant a reversal in every case. In the present case, however, considering the evidence, the transgression of the rule was, in the judgment of the *Page 395 writer, prejudicial to the appellant. For that reason the motion for rehearing should be granted, the affirmance set aside, the judgment reversed and the cause remanded.
Reversed and remanded.