
    PALLA v. STATE.
    (No. 8222.)
    (Court of Criminal Appeals of Texas.
    Nov. 4, 1925.)
    intoxicating liquors <S=>236(11) — Evidence held insufficient to support conviction of joint sale to witness and another.
    Evidence that witness was accompanied by another person when he purchased whisky from accused held insufficient to warrant a conviction of accused under a count charging joint sale to witness and such other person.
    Lattimore, J., dissenting.
    Appeal from District Court, Bastrop County; R. J. Alexander, Judge.
    Tom Palla was convicted of the sale of intoxicating liquor, and he appeals.
    Reversed and remanded.
    E. T. Simmang^ of Giddings, and P. J. Alexander, of Smithville, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

-Conviction is for the sale of intoxicating liquor, with punishment assessed at one year in the penitentiary. The indictment contained three counts. The first charged a sale to James Roberson and Bee Saunders, the second charged a sale to Roberson alone, and the third charged a sale to Saunders alone. The case was submitted to the jury upon the first and second counts only; the court instructing them -not to regard the third count for any purpose.

A number of questions are raised by appellant in his brief, but we think it unnecessary to discuss them, on account of the disposition we feel compelled to make of the case. Bee Saunders was not present at the trial; his absence being accounted for by proof that he had left the county where the trial was had. The substance of the testimony of Roberson and Phil Hopes was that those two together with Saunders went in a Ford truck to appellant’s house; that Hopes and Roberson each furnished $2 for the purpose of buying the whisky; that Saunders put in nothing whatever; that when they arrived at the house Hopes remained in the car; that Roberson and Saunders went to the house and returned to the car with the whisky. Hopes did not hear the conversation'which took place between Roberson and appellant, but testified to their actions, from which the conclusion would be drawn that he saw Roberson passing the money to appellant, and appellant the whis-ky to Roberson. Roberson testified that Saunders had nothing whatever to do with the purchase of the whisky and only accompanied him (Roberson) from the ear to the house; that Roberson did all the talking, paid the $4 over to appellant and received from appellant the whisky.

Appellant objected to the court submitting the first count to the jury upon the ground that the evidence had failed to show that Saunders was a party to the transaction. He presented a special charge specifically calling the court’s attention to the fact, requesting that the jury be told that the state had failed to prove the sale of any liquor to Saunders, and for that reason appellant could not be convicted under the first count in the indictment. This charge was refused. The verdict finds appellant guilty under the first count. In our opinion the judgment based thereon cannot be permitted to stand, because the evidence does not support the finding of a joint sale to Roberson and Saunders, but shows only a sale made to Roberson while Saunders was present. We are at a loss to account for the jury convicting under the first count in the indictment, instead of the second, which charged a sale to Roberson along. Arnold v. State, 47 Tex. Cr. S. 556, 85 S. W. 18; Tippit v. State, 53 Tex. Cr. R. 180, 109 S. W. 190; O’Shennessey v. State, 49 Tex. Cr. R. 600, 96 S. W. 790; Jones v. State, 76 Tex. Cr. R. 239, 174 S. W. 349; Sessions v. State (Tex. Cr. App.) 98 S. W. 243; Price v. State, 83 Tex. Cr. R. 322, 202 S. W. 948.

For the reasons heretofore given, the judgment must be reversed, and the cause remanded.

LATTIMORE, J.

(dissenting). For reasons set out fully in Brown v. State (No. 7810) 276 S. W. 908, opinion this day handed down, I respectfully record my dissent. The indictment, alleging a sale to Roberson and Saunders, is fully supported by proof of a sale to either, and there is no legal variance. 
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