
    HIGHTOWER v. STATE.
    (No. 8334.)
    (Court of Criminal Appeals of Texas.
    April 2, 1924.)
    1. Criminal law <®=o517(1) —Defendant’s written confession held properly admitted.
    In a prosecution for the sale of intoxicating, liquor, defendant’s written confession was properly received in evidence where there was no showing that at the time the confession was made he was under arrest, or that there was any fault in the confession, tested by Code Cr. Proc. 1911, art. 810.
    2. Criminal law <&wkey;448(3) — Testimony that defendant signed confession willingly held not • inadmissible as conclusion.
    .In a prosecution for the sale of intoxicating liquor, testimony of the person to whom defendant’s confession was made that defendant signed it willingly was not objectionable as a conclusion where such person testified that after warning defendant he made the statement which was reduced to writing, examined and signed by defendant without protest in the presence of two witnesses, neither of whom was called to testify.
    3. Intoxicating liquors &wkey;>236(ll) — Evidence held to sustain conviction of unlawful sale.
    In a prosecution for the sale of intoxicating liquors, evidence held to sustain conviction, notwithstanding that defendant delivered the liquor to purchaser believing him to be a friend, where he was paid for it, though he made no profit in the transaction.
    Appeal from Criminal District Court, Dallas County; <3. A. Pippen, Judge.
    S. H. Hightower was convicted of the unlawful sale of intoxicating liquor, and he appeals.
    Affirmed.
    Shelby S. Cox, Cr. Dist. Atty., of Dallas, and Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is the unlawful sale of intoxicating liquor; punishment ■ fixed at- confinement in the penitentiary for a period of one year.

The state’s evidence, if believed, leaves no question but that the appellant sold whisky to the purchaser named in the indictment.

The complaint in bills of exception Nos. 1 and 2 of the receipt in evidence of the written confession of the appellant cannot be sustained. The bills fail to show that the appellant was under arrest at the time the confession was made; nor do they show any fault in the confession, tested by the rule laid down by article 810, C. C. P., with reference to a confession made by one under arrest.

Bill No. 3, complaining of the receipt of the testimony of the person to whom the confession was made that appellant signed it willingly shows no prejudicial error. The point made, against it is that it states a conclusion. The confession was signed before two witnesses. The person to whom it was made testified that after giving tp appellant the warning required by law he made the statement in question which, was reduced to writing by the witness, examined by the appellant, and signed by him without protest in the presence of two witnesses, neither of whom was called to testify.

Appellant, testifying as a witness in his own behalf, admitted that he sold the whisky and received $8 for it. He claimed, however, that Caldwell, the purchaser, was believed at the time to be one 'Carter, a friend of the appellant, and by appointment made over the telephone he obtained a half gallon of whisky and delivered it to Caldwell; that in the telephone communication Caldwell represented himself as Carter, and that appellant, in order to oblige him, obtained the whisky, took it to the place agreed upon, delivered it, and received $8; that he made no profit in the transaction. ■

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