¶1(concurring).
¶2Appellant testified that he owned a cafe in Kilgore and was licensed to sell beer there; that the beer found in his car in Smith County was the remnant of his stock of merchandise which he was carrying to his home in said County, a dry area, for his own consumption.
¶3The controlling question is — was such transportation of the beer in the dry area unlawful ?
¶4Over appellant's exception, the court refused to submit to the jury as an affirmative defense the issue raised by his testimony. He charged the jury to the effect that proof of the transporting of a quantity exceeding 24 twelve ounce containers of beer shall be prima facie evidence that such beer was being transported in violation of the law.
¶5Art. 666-23a(l) Vernon’s Ann.P.C. reads: “ … any person who purchases alcoholic beverages for his own consumption may transport same from a place where the sale thereof is legal to a place where the possession thereof is legal.”
¶6The crux of the defense is the legality of the acquisition at a place where the sale is legal, and legality of possession at the place to which the beverage is transported.
¶7One dictionary meaning of “Purchase” is “something gotten by any means.” In Real Property Law “Purchase” has been defined as “the possession of lands … which a man hath by his own act or agreement … In this sense he who takes by gift or by alienation is regarded by the law as a purchaser.”
¶8The conclusion is expressed that, assuming that appellant’s testimony is true, the transportation of the beer lawfully obtained from his place of business in a wet area to his home in a dry area for his own consumption was not unlawful and such testimony raised an affirmative defense which should have been submitted to the jury.