
    No. 5964.
    Tony Croell v. The State.
    Practice.—Charge of the Court must respond to the case as made by the proof, and must not State abstract propositions which have no foundation in the evidence. See this ease in illustration.
    Appeal from the County Court of Robertson. Tried below before the Hon. C. 8. Brigance, County Judge.
    The opinion discloses the case. The penalty imposed was a fine of one hundred dollars.
    
      Simmons & Crawford, for the appellant.
    
      W. L. Davidson, Assistant Attorney General, for the State.
   Hurt, Judge.

This is a conviction for opening and keeping open a bar room on a day an election was held in or at appellant’s voting place. (Penal Code, art. 178.)

The evidence was that appellant’s bar room was opened and kept open several minutes at Brémond, on the day of an election at that place, and that appellant was aware of the opening and keeping open of his saloon, etc. Counsel for appellant requested the following charge, which was refused, and a bill of exceptions was reserved: “If you believe from the evidence that defendant went into his saloon for any other purpose than that of business connected with his saloon, you will find him not guilty.”

There was no error in refusing this charge, first, because there Was no evidence tending in the slightest manner to show that •defendant opened the saloon for any other purpose than that connected with the saloon business; and second, it is not necessary to show that the accused sold or gave away malt or intoxicating liquors, because, if this is shown, he would be guilty of violating the law whether the saloon was opened or not.

Opinion delivered June 16, 1888.

If, in a case of necessity, the saloon man should desire ice, lemons, or other articles for his family, or any other purpose, and entered for the purpose of procuring the same, by making proof of these facts the court would be required to instruct the jury thereon. But in the absence of such facts the court is not required to charge upon imaginary theories—abstract propositions with no basis in the evidence. Affirmed.

Affirmed.  