
    CORTINAS v. STATE.
    (No. 7243.)
    (Court of Criminal Appeals of Texas.
    Dec. 6, 1922.)
    1. Intoxicating liquors <&wkey;236(4) — Accused’s own testimony held to connect him with sale of liquor as representing seller rather than the buyer.
    Evidence held to raise an issue of fact as to whether accused was acting for D., the purchaser of liquor, or O., the bootlegger, and the circumstances testified by accused himself to so .connect him with the sale as not to justify the appellate court in deciding as a matter of law that accused and the bootlegger were not acting together.
    2. Intoxicating liquors >&wkey;l46(3) — One acting .for purchaser of intoxicating liquor not guilty
    of selling it.
    One acting for the purchaser of intoxicating liquors would not be guilty of the offense of selling it.
    3. Criminal law <&wkey;>!087(2) — Bills of exceptions, to be considered, must indicate from record that they were filed in court below within time allowed by law.
    To authorize the consideration by the appellate court of bills of exceptions, it is necessary that the record show that they were filed in the court below within the time allowed by law.
    (g^>For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes
    Appeal from District Court, San Patricio County; M. A. Childers, Judge.
    Victor Cortinas was convicted of unlawfully selling intoxicating liquors, and appeals.
    Affirmed.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The conviction is for the unlawful sale of intoxicating liquors; punishment fixed at confinement in the penitentiary for a period of one year.

The state witness Devers the alleged purchaser, testified that he, in company with the witness Fisher, went to the appellant’s place of business at night and asked if he had anything to drink. The appellant replied: “I haven’t got it, but I can get it,” and said that the price was $5. This amount the witness gave him. Appellant disappeared and shortly thereafter a bottle of intoxicating liquor was delivered to the witness by another Mexican, whose name the witness did not know. Fisher’s testimony corroborates that of Devers.

Appellant testified that Devers came and said: “Cannot yon get a hold of me a bottle.” Appellant said, “Yes,” and he then went to Felipe Olivarez, a bootlegger, and told him that Devers wanted a bottLe of tequila, at tjie same time handing Olivarez the $5 which Devers had given him; that he never saw the liquor and was not interested in the sale in any manner save as an accommodator to Devers.

The evidence, in our opinion, raises an issue of fact touching appellant’s relation with the transaction. If it was true that he acted merely for the purchaser, he would not be guilty. Key v. State, 37 Tex. Cr. R. 78, 38 S. W. 773, and other cases listed in Branch’s Grim. Daw, § 569. If, however, he was the seller or was acting with Olivarez in making the sale, he would be a principal offender. From the standpoint of both the state and the appellant, it appears that an illegal sale of intoxicating liquor was made. ■ The appellant admittedly fixed and received the price. That he delivered the money to another rests on his own testimony alone. Even so the circumstances connect him with the sale in a manner which does not justify this court in deciding; as. a matter of law, that he and Olivarez were not acting together.

We find copied in the record several bills of exceptions. They bear no file mark. It is necessary, to, authorize their consideration, that the record show that they were filed in the court below within the time allowed by law. The-state objects to their consideration. Oliver v. State, 58 Tex. Cr. R. 50, 124 S. W. 637; Childress v. State (Tex. Cr. App.) 241 S. W. 1029.

The judgment is affirmed.  