
    PASCHALL v. STATE.
    (No. 7392.)
    Court of Criminal Appeals of Texas.
    Jan. 31, 1923.
    Rehearing Denied June 13, 1923.)
    1. Criminal law <&wkey;8l4(I5)~Refusal to instruct to determine whether state witnesses were accomplices held not error.
    Where under the statute in force at the time the alleged offense of selling intoxicating liquors was charged to have been committed the purchaser was not an accomplice witness there was no error in refusing to instruct the jury to determine whether P. and C. who testified for the state as to the sale of the liquor, were accomplices. ■
    2. Criminal law <&wkey;4144(14) — Appellate court must presume that charge not excepted te at trial was satisfactory to accused.
    Where accused in a liquor prosecution had the right to the "benefit of any favorable testimony touching his reputation, on the issue of guilt or innocence, and the court instructed that the jury would only consider the testimony of reputation in passing upon accused’s plea for a suspended sentence, and accused took no exception to the charge, the presumption on appeal must be indulged, under Vernon’s Ann. Code Cr. Proc. 1916, art. 735, that the charge was satisfactory to accused.
    3. Intoxicating liquors <&wkey;236(l^) — Evidence that article sold was whisky held to justify finding it was intoxicating.
    Evidence that the article sold was whisky held to justify a finding that it was intoxicating.
    4. Criminal law <&wkey;l 172(7) — No complaint of favorable instruction.
    Accused cannot complain of a charge telling the jury that, if they found him guilty, the-question whether a suspended sentence should be recommended was within their power and discretion, because it gave the jury unrestricted authority to recommend a suspended sentence, and failed to embrace that part of the law limiting the authority of the jury, in recommending the suspended sentence, to cases in which accused has not been convicted of a felony.
    5. Criminal law <&wkey;80-8(3) — Law of reasonable - doubt need not be given in connection with every phase of tbe case.
    Where, in a prosecution for delivering intoxicating liquor to E. and receiving money therefor, accused relied on his agency to E. as a defense, and the court embraced the law of reasonable doubt in the main charge, and also in direct connection with accused’s special charge of his affirmative defense of agency to E., held that the subject of reasonable doubt was sufficiently given, the facts of the case bringing it within the rule that a charge on the law of reasonable doubt need not be given in connection with every phase of the case or proposition of the court’s charge, but that it is enough to give it in regard to the whole case.
    On Motion for Rehearing.
    6.Criminal law i&wkey;>822(l) — In determining whether charge was reversibly- erroneous, charge and special charges must be construed as whole.
    Whether the wording of any charge is reversibly erroneous must depend upon the facts of each particular case, and in passing upon the matter the charge and special charges must be considered together as a whole.
    Appeal from District Court, Colorado County; M. C. Jeffreys, Judge.
    Garry Paschall was convicted of unlawfully selling intoxicating liquor, and appeals.
    Affirmed.
    H. A. Townsend, of Columbus, and H. E. Kahn, of Houston, for appellant.
    R. G. Storey, Asst. Atty. • Gen., for the State.
   MORROW, P. J.

Conviction is for unlawfully selling intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

Without detailing it, the testimony of the alleged purchaser, Ered Purges, is sufficient to show that the appellant sold him a quart of whisky. .

Appellant testified and explained his connection with the transaction as being.that of an agent for the purchaser, and that he was not interested in, or connected with, the sale' other than as an accommodation to the purchaser, Purges. His position is that he had previously obtained whisky from a man by the name of Joseph Koelski or Kojoski, who passed through the country in an automobile at various intervals of time in going from. Payette county, where he lived, to Wharton county; that Purges desired to obtain some whisky, and inquired of the appellant whether he knew where it could be obtained; that the appellant undertook to obtain it from Kojoski when he should make his appearance again; that several days later he did obtain it from Kojoski for Purges.

There was evidence tending to show that Kojoski was a fictitious person. A citizen of Payette county of wide acquaintance testified that he had no knowledge of him, and the subpoena issued for him was indorsed with the notation that he was unknown. The question of agency was submitted to the jury, as were other matters involving the merits of the ease, in a manner which, was acceptable to the appellant.

There was no error in refusing to instruct the jury to determine whether or not Purges and Cochrane, who testified for- the state, were accomplices. Under the statute in force at the time the offense is charged to have been committed, the purchaser was not an accomplice witness.

The appellant sought a suspended sentence. The state introduced two witnesses who testified that his general reputation as a law-abiding citizen in the community in which he lived was had. The appellant on this issue introduced witnesses who testified that his reputation in the respect mentioned was good. The court instructed the jury with reference to the testimony that they would only consider it in passing upon the plea for a suspended sentence. Had this charge been made the subject of an exception at the time of the trial, a serious question might be presented. Stalling v. State, 90 Tex. Cr. R. 314, 234 S. W. 914. The appellant manifestly had the right to the benefit of any favorable testimony touching his reputation on the issue of guilt or innocence. Since no exception to the charge was urged at the time of the trial, the presumption on appeal must be indulged that it was satisfactory to the appellant. This is required by the statute. See article 735 of the Code of Criminal Procedure (Vernon’s 1916); Boaz v. State, 89 Tex. Cr. R. 515, 231 S. W. 790, and cases collated in Vernon’s Tex. Crim. Stat. vol. 2, p. 525.

There was evidence that the article sold was whisky. This is sufficient to justify the finding that it was intoxicating. Black on Intoxicating Liquors, § 521, p. 616; Cyc. of Law & Proc. vol. 23, p. 266; Terry v. State, 44 Tex. Cr. R. 411, 71 S. W. 968.

Complaint is made of the charge on suspended sentence in that it fails to refer io that part of the law limiting the authority of the jury, in recommending the suspended sentence, to cases, in which the accused has not been convicted of a felóny. The charge given told the jury.that if they found the appellant guilty, the question whether the suspended sentence should be recommended was within their power and discretion. This apparently gave the jury unrestricted authority to recommend the suspended sentence, while the matter, the omission of which is complained of, would have restricted it. In failing to embrace the restrictions which the law placed upon the jury, the charge was unduly favorable to the appellant. For this reason his complaint of it is not meritorious.

In submitting the case to the jury, the court used this language:

“You are instructed that if you believe from the evidence that the defendant * * * did then and there unlawfully sell to Fred Furges spirituous liquor, capable of producing intoxication, then you will convict the defendant, etc. If you do not believe from the evidence you will acquit the defendant.”

The complaint is made that the law of reasonable doubt was not embraced. In another paragraph of the charge, the court used this language:

“The defendant in a criminal case is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt, and in case you have a reasonable doubt as to the defendant’s guilt, you will acquit him and say by your verdict not guilty.”

The facts of the case bring it within the well-established rule that a charge on the law of reasonable doubt need not be given in connection with every phase of .the case or proposition of the court’s .charge, but that it is enough to give it in regard to the whole case. See Branch’s Ann. Tex. Pen. Code, p. 5; Ashlock v. State, 16 Tex. App. 23; Farris v. State, 55 Tex. Cr. R. 482, 117 S. W. 798, 131 Am. St. Rep. 824; Wallace v. State (Tex. Cr. App.) 97 S. W. 1051; McCullough v. State, 23 Tex. App. 636, 5 S. W. 175; Vernon’s Tex. Crim. Rep. vol. 2, p. 684.

Appellant did not deny the transaction in which he delivered the liquor in question to the alleged purchaser and received the money therefor. The truth of his explanation was his sole defense. In a special charge, drawn by him, and given to the jury by the court, the jury was told that if in the transaction he was acting for the purchaser, Furges, and he obtained the liquor for Furges as his friend and agent from one Kolski or Kp-joski, and without profit to himself, but for the sole purpose of obliging Furges, that they would find him not guilty, and if they had a reasonable doubt upon that subject an acquittal must result. The court having embraced the subject of reasonable doubt In the main charge and also having given it in direct connection with the appellant’s affirmative defense of agency for the purchaser, the demand of the law upon that subject was satisfied.

Finding no error in the record, the judgment is affirmed.

On Motion for Eehearing.

HAWKINS, J.

-We have examined appellant’s motion for rehearing. Whether the wording of any charge is reversibly erroneous must depend upon the facts of each particular case, and in passing upon the matter the charge and special charges must be considered together as a whole. It is still our view that the court’s charge in connection with the special charge given at appellant’s request could have left no question in the jury’s mind that they must find beyond a “reasonable doubt” the facts to be true upon which guilt depended, else they should acquit.

The motion for rehearing is overruled. 
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