The state moves for a rehearing, asserting that we failed to note a special charge asked by appellant and given by the trial court, which, in the opinion of the state, cured the error for *Page 201 which reversal was ordered. We were not unmindful of the special charge given, as referred to. In same the jury were instrucetd to acquit in case they found that if appellant transported yeast at the time charged, he should be acquitted if he did not know of the unlawful purpose for which the yeast was being transported, or did not know that same was being transported for the purpose of manufacturing spirituous, vinous and malt liquors capable of producing intoxication.
As a matter of fact this record discloses that appellant testified that he did not know there was any yeast in his car, at the time charged. He claimed that he went from Dallas to Weatherford with two other men, for their accommodation, and that after they had started, at the request of one of the men he stopped his car at some place and a man there put a box in the back of the car, of whose contents appellant claimed he was unapprised and ignorant. While it is true the officers who arrested appellant and his companions testified that the fifty-pound carton of yeast in the back seat of the car had on it in large letters that it was fifty pounds of yeast, — a fact which might justify the jury in concluding appellant testified falsely in regard to his knowledge of the fact that yeast was in the car, — still the trial court would not be relieved of need for giving the law as contained in another special charge which was asked and refused, — in which it was sought by appellant to have the jury told that unless they believed from the evidence beyond a reasonable doubt that appellant, at said time and place, knew that it was yeast in said box * * * they should acquit and say by their verdict not guilty. The charge was excepted to for its failure to submit to the jury the question of appellant's knowledge of the fact that yeast was in the car, in addition to the special charge which was refused, above mentioned. This being a defensive theory, and the attention of the court being called pointedly to the same, we cannot say that the matter was of no injury to the accused.
The state's motion for rehearing will be overruled.
Overruled.