
    BECK v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 15, 1911.)
    1. Intoxicating Liquors (§ 236) — Criminal Prosecutions — Sufficiency of Evidence.
    Evidence held to sustain a conviction of violation of the. prohibition law.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Dec. Dig. § 236.]
    
      2. Intoxicating Liquors (§ 239) — Criminal Prosecutions — Instructions — Responsibility for Acts of Agent.
    In a prosecution for violation of the prohibition law, where the prosecuting witness testified that he asked the defendant to procure a ¡bottle of whisky for him, and that he said he would, and that later some one handed him a bottle of whisky through a window, and the witness saw only the hand of the person who handed it to him, and could not tell who it was, an instruction that a delivery of intoxicating liquors may be by the person charged with the sale, or by him acting through some one else, and if the defendant in person sold the liquor to the witness, and delivered the liquor himself in person, or through some other person acting with the defendant, or under his instructions, such delivery would authorize a verdict of guilty, providing the other essential elements of the sale were found, was proper.
    [Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. §§ . 331-347; Dec. Dig. § 239.]
    3. Criminal Law (§ 863*) — Triai>-D®liber-ations of Jury — Instructions After Submission of Cause.
    In a prosecution for violation of the prohibition law, where a witness testified that he asked the defendant to procure whisky for him, and defendant said he would, and thereafter some one handed a bottle of whisky to the witness through a window, but that witness saw only his hand, and did not know who it was, and the jury propounded to the court, in writing, the question whether a man would have to sell and deliver intoxicating liquors in person to be a violation of the law, it was the duty of the court, under Code Grim. Proc. 1895, arts. 733, 734, authorizing the jury to communicate with the court, and to ask further instruction of the judge after having retired, to answer the question of the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2065-2067; Dec. Dig. § 863.]
    Appeal from Nacogdoches County Court; F. P. Marshall, Judge.
    Henry Beck was convicted of violating the prohibition law, and appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
       For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

The appellant was convicted of violating the prohibition law, which law had been put into effect in Nacog-doches county by an election, properly held and declared in March, 1906, fined $100, and given 30 days in jail. The sale was charged in the indictment to have been made to Tom Lowranee, on or about March 1, 1910.

Tom Lowranee testified that he know the appellant, and had known him for a long time. That he runs a negro restaurant in Garrison. That some time in March, 1910, near appellant’s restaurant, he had a conversation with him about getting some whisky, and asked him if he could rustle him some whisky. Appellant replied that he could. Lowranee then gave him $1.50 to pay for the same, and appellant told Lowranee to go into the skating rink and wait. They then separated; appellant going to his restaurant, and witness going to the skating rink. After waiting something like 20 minutes, some one placed through the window of the skating rink a quart of whisky. He did not see who the party was who placed the whisky through the window, but saw his hand, and it was black. Appellant was a negro. After getting the whisky, the witness went out in town, and did not see the defendant any more that day. On cross-examination, this witness testified that the appellant’s restaurant and skating rink were beside one another; they did not join; there being a small space between them. He did not know who put the whisky in the window; he just saw the hand of the man who put it in through the window, and it was a black hand. 1-Ie did not remember the exact distance in feet between the restaurant and the skating rink, but there was just a narrow space between them.

The appellant testified that he knew Tom Lowranee. He denied that he saw him at the time and place Lowranee testified he diet He denied receiving any money from him, or delivering to him any intoxicating liquors at any time. He denied specially that he received any money from Lowranee, on or about March 1, 1910, or at any time, and denied that he told him he thought he could rustle some whisky for him. In fact, he denied everything about the occurrence that Lowranee had testified to. On cross-examination, he again denied everything Lowranee had testified to about Lowranee having paid him any money, or having any conversation with him; that he carried him any whisky, and delivered it to him in the skating rink, or anywhere else, on that day, or at any other time. He testified that he run a colored barber shop, restaurant, and lodging room in the restaurant building, which is alongside of the skating rink; that there were several windows in the skating rink next to his restaurant building; and that there was a small passageway between the skating rink and his restaurant. Also that he never had any whisky that day at his restaurant, but had some at his residence. It was admitted that prohibition was in force in Nacogdoches county at and prior to the time the alleged sale was charged.

The court gave a correct charge, submitting the case to the jury. There is no complaint of the main charge of the court at all by appellant. The evidence is amply sufficient to sustain the conviction.

Appellant has a bill of exceptions which shows: That after the jury had retired to consider their verdict, and the main charge of the court had been given them, they came into the court in a body, and propounded, in writing, to the court this question: “Would a man have to sell and deliver intoxicating liquors in person to be violation of law? Bob Axley, Foreman.” That in response to this question the court, over appellant’s objection, gave the jury this charge: “In answer to your inquiry, propounded in writing, signed by your foreman, you are instructed that a delivery of intoxicating liquors may be by tbe person charged with the sale, or it may be by him acting through some one else, and if the defendant in person sold the intoxicating liquor, as alleged, to Tom Lowrance, and delivered said intoxicating liquor himself, in person, or through some other person, acting with the defendant, or under his instructions, such delivery, if any you find, under the instructions heretofore given, would constitute a delivery, and such sale and delivery, as above explained, if any you find from the evidence, beyond a reasonable doubt, was made by the defendant, or his agent, would authorize you to find defendant guilty, provided you find the other essential elements of the sale to be true as alleged.” To which the appellant excepted, because it was argumentative, upon the weight of the evidence. That there was no testimony suggesting or raising the question of agency. That it authorized the conviction of the defendant, even though the jury found that the defendant had nothing to do with the alleged sale, and the sale was made by the agent, without the participation of the defendant; and it was in conflict and contradictory of a special charge No. 1, given by the court at his request, which was as follows: “In this case you are instructed that, before you could convict the defendant in this case, you must find, beyond a reasonable doubt, that the defendant sold and delivered intoxicating liquor to the prosecuting witness, Tom Low-rance, and, unless you so find that the defendant sold and delivered intoxicating liquor to the prosecuting witness on or about the date charged in the indictment, you will find defendant not guilty.” And because this charge, objected to, authorized the jury to convict appellant, even though the jury should find that the agent of the defendant sold and delivered the intoxicating liquors to the pros"ecuting witness, and that the request of the jury called for instructions upon an abstract proposition of law, and was not a charge applicable to the facts of the case, but was upon an abstract principle of law. Appellant in his motion for new trial makes the same objections to this special charge of the court, given in answer to the question by the jury.

Evidently the jury was undecided about whether it was the appellant in person who handed the whisky up to the complain-' ing witness through the window of the skating rink, or some one the appellant had sent, for the purpose of making the delivery, and they did not know whether they were authorized to find a verdict against the appellant if he had not in person done this, but had it done by some one else. Under the circumstances, it is our opinion that it was the duty of the court to charge the jury in answer to their question (Code Criminal Procedure, arts. 733 and 734), and that the charge given on the point was peculiarly and specially applicable thereto, and correctly and properly instructed the jury thereon, and that it is in no way subject to the criticism by the appellant, so as to authorize or require this court to reverse the case.

There are no other questions raised to be decided.

The judgment will therefore be affirmed.  