
    FENOGLIO v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 8, 1913.)
    CRIMINAL Law (§ 829*) — Instructions— C-ure bt Other Instructions.
    The denial of special charges relating to a matter sufficiently presented in the main charge is not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.*]
    Appeal from Montague County Court; A. W. Ritchie, Judge.
    Dan Penoglio was convicted of violating the local option law, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was prosecuted and convicted of violating the local option law in Montague county, and, it being a misdemeanor in that county, his punishment was assessed at a fine of $25 and imprisonment in the county jail for 20 days.

The only complaint in the motion for a new trial is a statement that- the evidence is insufficient, and that the court erred in refusing to give appellant’s two requested charges. The two charges both relate to the same matter, and both were sufficiently presented in, the court’s main charge. The state’s witness testified that he purchased a bottle of whisky from appellant and paid him $1 for it. The defendant testified that the state’s witness asked him for a drink, and he handed him the bottle, and the state’s witness kept it, paying him nothing for it. The court, in his charge, required the jury to find, beyond a reasonable doubt, that appellant made a sale of the whisky to the prosecuting witness, or they would acquit. Whether or not a sale was made was the sole issue; the state’s witness affirming that a sale was made, while defendant denied this fact. As before stated, this issue was presented in a way that appellant would have and must have been acquitted, unless the jury believed a sale was made; and under such circumstances the failure to give the special charges present no error.

The judgment is affirmed.  