The statement of facts in this case was filed properly with the clerk of the trial court but was not sent here with the record on appeal and was not therefore before us when the original opinion was written. By proper means the same has been sent up and is now here for consideration.
Considering the record in the light of said statement of facts, we think the learned trial judge was in error in the matters complained of in Bills of Exception Nos. 1, 2 and 3. The issue before the jury upon this trial was whether the appellant transported whisky unlawfully on January 10, 1929, or whether he had it for medicinal purposes. He swore to the latter. A doctor corroborated him as to the illness of his family. It is difficult for us to see the pertinency of the proof of his possession of mash and whisky some ten months later, or that he was found guilty in a case in the federal court in October, 1929, nor the amount of penalty then inflicted. These facts would necessarily be of much prejudice to the appellant in the eyes of the jury. We think the errors of sufficient gravity to call for a reversal of the judgment of conviction.
The motion for rehearing is granted, the order of affirmance is set aside, the judgment of the trial court is reversed and the cause remanded.
Reversed and remanded. *Page 189