
    JONES v. STATE.
    (Court of Criminal Appeals of Texas.
    May 8, 1912.)
    Intoxicating Liquobs (§ 228*) — Illegal Sale — Agency—Evidence.
    The theory of defendant on a prosecution for sale of liquor to H. being that he acted only as agent of H., testimony of a witness that he saw defendant call M. and give him the money which H. had furnished, and saw M. go away and after some time return with the liquor and give it to defendant, who in turn gave it to H., is admissible.
    [Ed. Note. — Por other cases, see Intoxicating Liquors, Cent. Dig. §§ 324-330; Dec. Dig. § 228.*]
    Appeal from Nacogdoches County Court; P. P. Marshall, Judge.
    Jim Jones appeals from a conviction.
    Reversed and remanded.
    V. E. Middlebrook, of Nacogdoches, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was prosecuted under an information and complaint charging him with violating the local option law; he was tried and convicted, from which conviction he prosecutes an appeal to this court. Defendant filed a motion to quash the complaint and information on the ground that it did not run “in the name and by the authority of the state of Texas.” The information copied in the record begins with those words, and the court did not err in overruling the motion.

The view we take of this case renders it unnecessary to pass on the question raised in the bill of exceptions that the court erred in refusing to permit appellant to withdraw his announcement of ready on account of surprise. On another trial this question cannot arise. The prosecuting witness, Swanzy Haltom, testified that on or about December 1st he got a quart of whisky from appellant at the Redlands Hotel and gave him $1.50 to get the whisky. That he talked to another negro about the whisky besides appellant, but he got it from appellant. On cross-examination he said he could not swear whether it was appellant or another negro who went and got it. Appellant testified that Mr. Haltom came to him at the Red-lands Hotel and said he had to ride 14 miles that night and asked him to get him some whisky. That he told him he did not know where he could get it; that Dawson McNeer came along and he called him and told him what, Haltom wanted, and that Dawson Me-Neer got two pints of whisky and brought-them to the Redlands Hotel and gave them to him to give Mr. Haltbm, and he gave the two bottles to him. The defendant then ,placed Neil Butler on the witness stand, who testified that he heard the conversation between Mr. Haltom and appellant, and that he saw Mr. Haltom, appellant, and Dawson McNeer talking. The defendant then offered to prove by the witness that he saw Dawson McNeer bring the two bottles back to the hotel and deliver them to appellant, and appellant give the whisky to Mr.. Haltom. The state objected to the defendant being permitted to make this proof, and the court sustained the objection.

The defendant’s theory was that he acted only as agent of Mr. Haltom in securing the whisky, and desired to prove by the witness Butler that he saw him (appellant) call Dawson McNeer and give the $1.50, and that McNeer went off and was gone about 40 minutes and returned and gave the whisky to appellant, who in turn gave it to Mr. Hal-tom. It may be that the testimony would not have been true and the jury would have so found, yet appellant had the right to introduce this testimony in support of his contention, and the court erred in excluding the testimony. While perhaps it would not bq reversible error to refuse special charge No. 2 requested, yet it more aptly presents the question of agency than does the court’s main charge, and on another trial the substance of it should be given.

Eor the error above pointed out in excluding the testimony of the witness Butler, the case must be reversed.

Reversed and remanded.  