
    CLARK v. STATE.
    (No. 10237.)
    (Court of Criminal Appeals of Texas.
    Feb. 9, 1927.
    Rehearing Denied March 9, 1927.)
    1. Intoxicating liquors &wkey;>l46(I) — Defendant held guilty of sale of intoxicating liquor, where buyer drank defendant’s whisky, paying him for proportionate part consumed.
    Where defendant led witness to place where whisky was concealed, giving bottle to witness, who consumed part of whisky, defendant, receiving money from witness, helé guilty of sale of intoxicating liquor, regardless of whether witness bought bottle of whisky directly and by agreement, or paid merely for proportionate part of that used.
    2. Criminal law <&wkey;74l(t), 742(1) — Credibility of witness, and weight of testimony, is for jury.
    Credibility of witnesses, and weight to be given their testimony, is for jury.
    Appeal from District Court, Polk County; J. L. Manry, Judge.
    D. Clark was convicted of selling intoxicating liquor, and he appeals.
    Affirmed.
    Rowe & Rowe, of Livingston, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty, of Groesbeck, for the State.
   LATTIMORE, J.

Conviction in district court of Polk county of the unlawful sale of intoxicating liquor; punishment, one year in the penitentiary.

We have here a case in which the accused testifies positively that certain whisky was his; that it had been left for him at a place where it had often been left before by a negro. The last words spoken by him when a witness were, “The whisky was mine.” It appears that after same had been so left one Richardson and another suggested to appellant that they wanted something to drink, and were informed by him that he knew where they could get it. He piloted them to the place where two quarts of whisky were concealed behind a log. The whisky was then carried back to a fire, where part of it was consumed, and that left in one bottle was carried away by Richardson, who swears positively that he paid appellant $3 for a bottle of said whisky, or for his part of the expense of the party. These facts make out a plain case of sale of the whisky. We see no need for an instruction defining a sale. If Richardson bought directly and by agreement one bottle of appellant’s whisky, or if the party drank appellant’s whisky, and Richardson paid him for a proportionate part of that used, in either event this would be a sale. The court told the jury that, in order to convict, they must believe beyond a reasonable doubt that appellant sold intoxicating liquor to Richardson.

The refusal of special charges, in effect that, if the money was paid to appellant as Richardson’s part of the expense of a drinking party, etc., was in no sense erroneous. One may not invite his friends to a drinking party in this state wherein he furnishes liquor belonging to him, and each or all the others'pay him for their part, or a proportionate part of the whisky consumed. Such conduct would be a violation of the law. Appellant denied receiving any money from Richardson. Appellant’s attorneys obtained from Richardson a written statement, deemed by them contradictory of his testimony as given on this trial, a part of which was introduced in evidence. The credibility of the witnesses and the weight to be given their testimony were for the jury.

Finding no error in the record, the judgment will be affirmed.  