
    THOMPSON v. STATE.
    (No. 4572.)
    (Court of Criminal Appeals of Texas.
    Oct. 10, 1917.
    On Motion for Rehearing, Oct. 31, 1917.)
    On Motion for Rehearing.
    Intoxica tino Liquoks <&wkey;236(l) — Illegal Sale — Evidencií—Sufficiency.
    Evidence held sufficient to sustain conviction for illegal sale of intoxicating liquors in prohibition territory.
    Appeal from District Court, Caldwell County; Frank S. Roberts, Judge.
    Buddy Thompson was convicted of illegal sale of intoxicating liquors in prohibition territory, and he appeals.
    Affirmed. On motion for rehearing. Motion overruled.
    C. F. Richards and O. Ellis, Jr., both of Lockhart, for appellant. El B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDBRGAST, J.

This is an appeal from a conviction for making an illegal sale of intoxicating liquor iu prohibition territory.

The evidence by the state’s witness is positive and clear, showing that on the date alleged, after the prohibition law was in force making it a felony, appellant sold to him a quart of whisky. Appellant did not himself testify. The evidence was clearly sufficient to sustain the conviction.

Appellant has no bills of exceptions, made no objection to the charge of the court, and asked no special charges. In his motion for a new trial he claims the evidence is insufficient to sustain the conviction, and contends that the state’s witness to whom the sale was made was an accomplice, and a conviction could not be had upon his testimony alone. 1-Ie did not ask that this question be in any way submitted by the charge of the court. His contention cannot be sustained. The evidence does not show, or tend to show, that the state’s witness to whom the sale was alleged to have been made was an accomplice in the sale to him by appellant.

The judgment is affirmed.

On Motion for Rehearing.

Appellant, in his motion for rehearing, contends that the court erred in holding that the evidence was sufficient to sustain the conviction, claiming that the evidence showed that the state’s witness did not buy whisky from appellant, but that he acted as the witness’ agent in ordering it for him. The reverse of appellant’s contention is true. Lee Wootton, the party to whom appellant is alleged to have made the sale of liquor, on his direct examination testified:

“My name is Lee Wootton, and I live here in the town of Lockhart. I know the defendant, Buddy Thompson. I do not know what kind of business he has been in; I think he runs a domino room. I recently bought some intoxicating liquor from Buddy Thompson. It was on last Saturday night, the 24th day of March, 1917.-. I bought it from him down at the domino room. I bought a quart of whisky from him, and paid him $2 for it. This was in Caldwell county, state of Texas.”

This is the whole of his testimony under direct examination. In crossing him, appellant attempted to have him swear that he did not buy the liquor from appellant, but that he merely had appellant to order it for him. The witness persisted in his testimony that he bought it directly from him, and did not have appellant to order it for him. He swore:

“It is not a fact that I went to see Buddy Thompson on Thursday before the Saturday I got the whisky, and got him to order a quart of whisky for me. I just asked him if he was going to have any whisky, and if he did to save me a quart.”

He then tried to get the witness to swear that he had told Ben Frost that he had had the appellant order this whisky for him; hut he denied that he had so told Frost. He introduced Frost, who swore he did not know whetner the witness Lee Wootton had appellant to order the whisky for him or not; that he was not present when they had anything to say about it before the actual delivery of the whisky. His testimony, we think, cannot be considered to mean that said witness Wootton ever told him that he had had appellant order this whisky for him. But, if he had, that would be mere impeachment of the witness, and not establishing as a fact that the witness had had appellant to order the whisky for him.

It is also stated by appellant, in his motion, that the court was in error in saying that he requested no special charge. He says one was requested on agency straight out, and was given as requested on that phase. If such was the fact on the trial, this record shows nothing of it. But even if, as contended by appellant, he requested such a charge, by his own motion he shows that the court gave it, and if he is correct in this matter it would be against him and not for him; for, if the court submitted the issue at his request, the verdict of the jury clearly shows they did not believe that the witness had appellant order the whisky for him as is contended; but they believed the state’s witness that he did not have appellant order it for him, but that he bought it outright, as he positively testified.

The motion is overruled. 
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