
    JOHNSON v. STATE.
    (No. 4400.)
    (Court of Criminal Appeals of Texas.
    March 21, 1917.)
    1. Intoxicating Liquors <&wkey;239(5) — Offens-bs — Instruction.
    In a prosecution for the illegal sale of intoxicating liquors, where the evidence showed a sale of whisky, it was proper for the court to instruct the jury that whisky is an intoxicating liquor.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 336.]
    2. Criminal Law <&wkey;1086(14) — Appeal — Questions Presented — Refusal of Requested Charge.
    Under Code Cr. Proc. 1911, arts. 735, 737, 737a, and 743, as amended by Act April 5, 1913 (Acts 33d Leg. c. 138), regulating the giving of the charge and saving of exceptions thereto, a bill of exceptions filed two or three days after the trial by accused, who did not object to the charge as failing- to state the law as to insanity from the recent use of intoxicating liquors, which bill complained of the court’s refusal to give a requested charge on that subject, but did not show, nor did the record, that a request therefor was presented to the judge before the charge was read to the jury, cannot be considered.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 2767.]
    3. Criminal Law <&wkey;814(10) — Instructions —Insanity from Intoxication — Evidence.
    Testimony by accused that he was drunk and did not know that he made the alleged sale of whisky is not sufficient to require the giving of a requested charge on insanity from the recent use of intoxicating liquor.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1979, 1981.] "
    4. Intoxicating Liquors <&wkey;239(5) — Offenses — Instructions—Defining Intoxicating Liquor.
    In a prosecution for the illegal sale of intoxicating liquor, where the evidence showed- a sale of whisky, it was unnecessary for the court to define intoxicating liquor further than to charge that whisky was an intoxicating liquor.
    [Ed. Note. — For other eases, see Intoxicating Liquors, Cent. Dig. § 336.]
    Appeal from District Court, Titus County; J. A. Ward, Judge.
    M. R. Johnson was convicted of illegally selling intoxicating liquors, and lie appeals.
    Affirmed.
    I. N. Williams, of Mt. Pleasant, for appellant. E. B. Hendricks, Asst. Atty. .Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted for illegally selling intoxicating liquors in said county while the law in force made it a felony to- do so, and his punishment assessed at the lowest prescribed by law.

The uncontradicted testimony shows that at the time alleged in the indictment appellant sold whisky to the party to whom the sale was alleged to have been made. The testimony of two state’s witnesses was positive that appellant sold whisky to said purchaser; that the purchaser called for whis-ky; appellant told him it was whisky; delivered it to him as such; that it was so labeled. There is no testimony to the contrary, and no intimation therefrom that it was other than whisky. The court in submitting the case for a finding-properly required the jury to believe from the evidence .beyond a reasonable doubt every essential necessary under the law before they could convict. He further told them that, if they had a reasonable doubt of whether the liquor claimed to have been sold was intoxicating, to find him not guilty. In addition he charged the reasonable doubt, the presumption of innocence, etc.

The court correctly told the jury that whisky is an intoxicating liquor. Rucker v. State, 24 S. W. 902; Parker y. State, 39 Tex. Cr. R. 262; Aston v. State, 49 S. W. 385; Doutliitt v. State, 61 S. W. 404; Sebastian v. State, 44 Tex. Cr. R. 510, 72 S. W. 849; Rutherford v. State, 49 Tex. Cr. R. 22, 90 S. W. 172; Wilcoxson v. State, 91 S. W. 581; Smith v. State, 56 Tex. Cr. R. 501, 120 S. W. 881; Hambright v. State, 60 Tex. Cr. R. 253, 131 S. W. 1123.

Appellant testified and claimed he was drunk and did not know that he made the alleged sale of whisky, if he did. The other state’s witnesses who testified stated, in effect, that he was not so drunk, but that ho was drinking. Appellant by his testimony did not claim that he was insane from the recent use of intoxicating liquors nor from any other cause; just drunk. . He made no objection whatever to the court’s charge in failing to submit a charge on insanity from the recent use of intoxicating liquor. He has a bill which was filed two or three days after the trial complaining that the court refused to give .a special charge on the sub-jeet copied in the bill, but it nowhere shows, nor does the record, when that charge was presented to the judge; at least there is nothing to show that it was presented to the judge and asked at any time before the judge charged the jury. Under such circumstances it cannot be considered. Articles 735, 737, 737a, and 743, as amended by Act April 5, 1913, p. 278; Galan v. State, 76 Tex. Cr. R. 626, 177 S. W. 124; Ross v. State, 75 Tex. Cr. R. 60, 170 S. W. 305, and cases cited therein; and many other cases decided by this court since then exactly to the same effect.

However, if the question was presented so that it could be considered, the court should not have given it. The evidence did not raise the issue. Lucas v. State, 69 Tex. Or. R. 273, 155 S. W, 527. Besides, as he was assessed the lowest penalty, the refusal to give such charge would in no way injure him. The fact that he had pleaded for a suspended sentence could not and would not affect the question.

It is unnecessary for the court to define what constituted intoxicating liquor other than what he did charge.

No error is shown in the trial ofi the case, and the judgment is affirmed. 
      
       tftoFor other cases see saíne topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     