
    KENNARD v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 22, 1911.)
    Intoxicating Liquors (§ 223*) — Violation of Local Oftion Law — Sales—Issues, Proof, and Variance.
    An indictment alleged an illegal sale of intoxicating liquors to T. T. asked a third person if he could proeui’e whisky for him and gave him a dollar. The third person went to accused, and obtained whisky, and gave him the money, and notified him for whom the liquor was obtained. Held, not to show a sale to T.
    [E'd. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 274; Dec. Dig. § 223.*]
    Appeal from Houston County Court; E. Winfree, Judge.
    Jim Kennard was convicted o£ violating the local option law, and he appeals.
    Reversed and remanded.
    Moore & Sallas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

The record discloses that local option was in effect in Houston county. Appellant was charged with and convicted of violating that law.

The evidence discloses beyond any controversy that appellant had had whisky shipped to himself at Kennard, Tex. He gave Johnson an order for the whisky. Johnson received it, carried it, and delivered it to appellant. Appellant let Johnson and Jones, who accompanied Johnson, have a bottle of the whisky. There were 12 bottles in the consignment. Subsequently Stell was approached by Taylor, who asked him if he could get him some whisky. He told Taylor he would see about it, went to appellant, and inquired if he could let him have the whisky for Taylor, and gave him the dollar that had been given him by Taylor for the purpose of paying for the whisky. This money appellant accepted, and handed the keys of his house to Stell, who immediately got the whisky and deivered it to Taylor. Stell testified that at the time he got. the whisky, and made the purchase, and handed appellant the money, he notified appellant for whom he was getting the whisky, and that appellant told him it was all right. Under these circumstances Stell got the whisky and carried it to Taylor. Under the decisions of this court this does not constitute a sale to Taylor, the alleged purchaser. Under the decisions this would be a sale to Stell. Bruce v. State, 39 Tex. Cr. R. 26, 44 S. W. 852; Smart v. State, 49 Tex. Cr. R. 373, 92 S. W. 810; Vincent v. State, 55 S. W. 820; McLeod v. State, 44 S. W. 1090; Miles v. State, 138 S. W. 398; Oxford v. State, 97 S. W. 484; Whittlesey v. State, 131 S. W. 1093. There are other eases cited in the above-mentioned cases.

Under this view of the case it will be unnecessary to decide the other questions suggested. The facts being insufficient, under the above cases, to sustain this conviction, the judgment is reversed, and the cause is remanded.  