The offense is the unlawful possession of a barbiturate; the punishment, confinement in jail for six months.
The evidence reflects that appellant possessed some capsules that were shown to contain a barbiturate.
Appellant testified that he saw two of his nieces at his mother's house playing with some red pills or capsules; that he carried them away from the house to keep them from the children; that he did not know what was in the capsules; that he had never taken a barbiturate.
Whether the defense was true or not was a question of fact to be decided by the jury. Appellant had the legal right to have his defensive theory submitted in an affirmative manner to the jury. Fawcett v. State, Tex.Cr.App., 127 S.W.2d 905.
The jury should have been instructed to the effect that if appellant came into possession of the capsules by having picked them up to keep his nieces from playing with them, and did not know they contained barbiturate that he should be acquitted.
The judgment is reversed and the cause remanded.