Appellant testified that he was helping operate the still in manufacturing intoxicating liquor and that for two days' work he was to receive four dollars and a pint of whisky; that he took the employment to get the whisky for his wife who needed it for medicinal purposes. A much greater quantity of whisky was manufactured than the pint which appellant was to receive. There was no evidence that such additional liquor was being manufactured for medicinal or any other of the excepted purposes. The court charged the jury that "it is not unlawful to manufacture intoxicating liquor for medicinal purposes solely, but it is unlawful to manufacture intoxicating liquor for both medicinal and other purposes." The jury was further instructed that if appellant manufactured the liquor "solely for medicinal purposes he should be acquitted." In his motion for rehearing appellant assumes that because his testimony raised the issue the court's instruction had singled out such testimony and that it was a charge upon the weight of the evidence. We cannot so regard the instruction. The court was trying to apply the law to a rather peculiar state of facts presented by appellant.
Appellant further urges that in restricting the defense to manufacturing whisky for medicinal purposes "solely" our original opinion is in conflict with Veasy v. State,97 Tex. Crim. 299, 260 S.W. 1054; Tetmeyer v. State,114 Tex. Crim. 531, 26 S.W.2d 266; and Hufstettler v. State (Texas Crim. App.), 33 S.W.2d 461. In all of the cases mentioned the prosecution was for possessing intoxicating liquor for the purpose of sale. Under the statute (article 666, P. C.), 1925, it is made unlawful to possess intoxicating liquor for the purpose of sale. Possession for any other purpose is not an offense. Hence, an instruction such as was given in the present case *Page 301 would be a manifest mis-statement of the law if given in a case where the offense was possession for the purpose of sale.
The present prosecution was for manufacturing intoxicating liquor. We cannot regard the charge in this case under the facts as either erroneous, confusing or misleading.
The motion for rehearing is overruled.
Overruled.