
    WILSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 16, 1912.
    On Motion for Rehearing, March 12, 1913.)
    1. Criminal Law (§ 1129) — Appeal — Assignments on Error.
    Assignments of error in “refusing to give defendant’s special charge” numbered as- stated was insufficient to authorize its review.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2954-2964; Dee. Dig. § 1129.] .
    2. Intoxicating Liquors (§ 19) — Offenses —'Validity of Statute.
    Acts 31st Leg. (1st Ex. Sess.) c. 15, and Pen. Code 1911, art. 589, making it a felony to unlawfully engage in the occupation or business of selling intoxicating liquors in prohibition territory, is constitutional.
    [Ed. Note. — For other eases, see Intoxicating Liquors, Cent. Dig. § 25; Dec. Dig. § 19.]
    3. Criminal Law (§ 200) — Former Jeopardy-Distinct Offenses.
    A conviction in the county court for illegally selling intoxicants in a dry county would not bar a subsequent prosecution and conviction under Acts 31st Leg. (1st Ex. Sess.) c. 15, and Pen. Code 1911, art. 589, for unlawfully pursuing the occupation of selling intoxicants in prohibition territory ; the offenses being different in that the former conviction was for a misdemeanor while the latter was a felony prosecution.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 347, 386-409; Dec. Dig. § 200.]
    
      4. Ckiminal Law (§ 302) — Compromise of. Offenses.
    An agreement by the county attorney ana county judge, with the consent of the district attorney, that accused would not be_ further prosecuted for unlawfully selling intoxicants if he permitted a conviction in three cases against him, would not be binding upon the state without the approval of the district judge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 688-697; Dec. Dig. § 302.]
    5. Criminal Law (§• 369) — Prosecutions— Admission of Evidence — Other Sales.
    In a prosecution under Acts 31st Leg. (1st Ex. Sess.) c. 15, and Pen. Code 1911, art. 589, for unlawfully engaging in the business of selling intoxicants in prohibition territory, evidence of other sales than those alleged m the indictment is admissible to show that accused was engaged in the occupation of selling intoxicants.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369.]
    6. Criminal Law (§ 434) — Prosecution-Admission of Evidence.
    In a prosecution for unlawfully engaging in the business of selling intoxicants in dry territory, the books of an express company showing the shipments of liquors to accused were admissible in evidence, having been properly identified, and the entries being shown to have been correctly made, and accused’s receipt for items therein being shown.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1023; Dec. Dig. § 434.]
    7. Witnesses (§ 244) — Leading Questions —Discretion of Court.
    The court may, in its discretion, permit leading questions to be asked an unwilling witness in a criminal case.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 795, 848; Dec. Dig. § 244.].
    8. Witnesses <§ 242) — Leading Questions —Refreshing Recollection.
    Questions which are leading in their nature may be asked for the purpose of refreshing a witness’ recollection.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 795, 846; Dec. Dig. § 242.]
    9. Criminal Law (§ 655) — Triai^Miscon-duct of Court.
    After the trial judge had been out about an hour preparing his charge, he found on his return that some of the jury had become impatient at the delay, and in explanation thereof stated to the jury that it might seem that he had taken rather a long time to prepare the charge, but that when it was considered that the court’s charges were prepared with the view of being criticised by lawyers, and sometimes passed on by the higher courts, and that the court has to examine the special charges, perhaps the time taken, was not so long as it might appear. Held, that the remarks were not reversible error in the absence of a showing that the jury had been affected thereby.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1520-1523, 1527, 1535; Dec. Dig. § 655.]
    10. Jury (§ 131) — Examination of Jurors— 'Misconduct of District Attorney.
    A statement by the district attorney in examining- jurors before empanelment, that the law made it a felony for one to engage in the occupation of selling intoxicants in local option' counties, followed by a question whether the jury believed that was a good and wholesome law and ought to be enforced as any other law, to which they answered, “Yes,” was not reversible error on the ground that it tended to prejudge the facts.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 561-582; Dec. Dig. § 131.]
    11. Criminal Law (§ 822) — Trial—Instructions.
    The whole charge must be considered in determining whether a part thereof objected to is erroneous.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1990, 1991, 1994, 1995, 3158; Dec. Dig. § 822.]
    12. Criminal Law (§§ 763, 764) — Instructions — Weight of Evidence — “Engaged in Business of Selling Intoxicants.”
    The third paragraph of a charge instructed that in order to constitute “engaging in the business of selling intoxicants” within the meaning of the law, Acts 31st Leg. (1st Ex. Sess.) c. 15, and Pen. Code 1911, art. 589, which had been substantially quoted, the state must prove that accused had made at least two sales of intoxicating liquors within the period of limitation. The fourth paragraph charged that in order to constitute engaging in said occupation or business, the state must prove tha,t accused unlawfully engaged in and followed said occupation between the dates stated, that he unlawfully made at least as many as two sales of intoxicants between said dates, and the same language was repeated in the next paragraph. Article 591 provides that, in order to constitute engaging in or pursuing the occupation or business of selling intoxicating liquors within the meaning “of this law,” it shall be necessary for the state to prove, in all prosecutions hereunder, that the defendant made at least two sales of intoxicating liquors within three years next preceding the filing of the indictment. Held, that the third and fourth paragraphs were not on the weight of the evidence as being calculated to lead the jury to believe that two sales would constitute the offense.
    [Ed. Note. — For other eases, see Criminal Law,' Cent. Dig. §§ 1731-1748, 1752, 1768, 1770; Dec. Dig. §§ 763, 764
    
    For other definitions, see Words and Phrases, vol. 3, p. 2394; vol. 8, pp. 7649-7651.]
    13. Criminal Law ■(§ 954) — New Triai>— Motion — Assignments of Error.
    A ground of a motion for a new trial that “the court erred in the fifth paragraph of his general charge” was too general to require consideration.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2341, 2363-2367; Dec. Dig. § 954.]
    14. Intoxicating Liquors (§ 239) — Instructions — Confoemity to Issues.
    Where accused, in a prosecution for engaging in the business of selling intoxicating liquors in prohibition territory, claimed that he ordered the liquor as an accommodation to others, and collected the money therefor before he ordered it, an instruction that if accused ordered liquor for the persons named as an accommodation for them, and collected the money therefor before the order was made, he would not be guilty of making sales and the jury should acquit, was not objectionable on the ground that accused would not be guilty whether he ordered the liquor as an accommodation or not, but presented accused’s contention under the evidence.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 331-347; Dec. Dig. § 239.]
    On Motion for Rehearing.
    15. Criminal Law (§ 1133) — Appeal—Objections— Presentation Below.
    The Court of Criminal Appeals will not review objections to instructions when first made in that court, so that where, in a prosecution for selling intoxicants in dry territory, the objection below to a charge that if accused ordered liquor as an accommodation for others, and collected the money from them before the order was made, he would not be guilty, was that he would not be guilty whether he ordered it as an accommodation or not, an objection will not be considered on rehearing that the charge was erroneous as requiring the jury to believe that he collected the money from the parties before the order was made.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 2984; Dec. Dig. § 1183.]
    16. Intoxicating Liquors (§ 239) — Instbuc-tions — Conformity to Issues.
    Where, in a prosecution for engaging in the business of selling intoxicants in a dry county, accused claimed that he collected the , money from the parties for whom he ordered, 'before the liquor was ordered, which the state controverted, an instruction that, if accused ordered liquor for the accommodation of others and collected the money from them before the order was made, he would not be guilty, was not objectionable for requiring the jury to believe that he collected the money from such others before the order was made.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 331-347; Dec. Dig. § 239.]
    Appeal from District Court, Hunt County; R. L. Porter, Judge.
    Walter Wilson was convicted of unlawfully pursuing the occupation of selling intoxicants in prohibition territory, and he appeals.
    Affirmed.
    Evans & Carpenter, R. F. Spearman, and Hal G. Horton, all of Greenville, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. ICey-No. Series & RepTr Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. Sc Am. Dig. Key-No. Series Sc Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rcp’r Indexes
    
   PRENDERGAST, J.

Appellant was convicted under the act of 1909 (P. C. art. 589) for unlawfully engaging in and pursuing the occupation or business of selling intoxicating liquors in prohibition territory and his penalty fixed at the lowest term, two years in the penitentiary.

Some 19 separate and distinct sales of intoxicating liquors were alleged to have been made by appellant to respective persons named between the dates of March 10 to May 18, 1911.

Prohibition had been properly adopted and was in force in Hunt county, where this offense was alleged to have been committed, before 1911, and was in force when all these respective sales were alleged to have been made. It was also shown that between the dates of January 5 and May 22, 1911, appellant had shipped to and received 70 quarts of intoxicating liquors (whisky). The shipments ranged from two to eight quarts at a time; and that between February 18 and May 22, 1911, he also had shipped to him by express and received 25 kegs of beer. The shipments were one keg each day, received, except on March 20th and 25th on which days he received two kegs per day. It appears from the evidence that the sale of beer by appellant was made under the guise of lunches. He would go to parties during the times he received this beer, tell them they were going to have a spread that day, and that they were going to have beer, and would ask if they wanted to come in on it; that if they did it would cost them 50 cents for lunch. That there were usually from 12 to 15 persons who would go in on these spreads, each contributing, or usually contributing, 50 cents. He would then order the beer from Dallas, buy some articles for a lunch, and when the beer arrived would take it to /some out of the way or secret place, and the parties would then proceed to drink the beer and eat the lunches; each person drinking beer, as it suited him, until it was all drunk. On some occasions he would get these 50 cent payments before he would send for the beer; on others, after he had sent for it and when the beer was on hand. The evidence clearly justified the jury to believe that in most, if not all, of these instances, the lunches and the ordering of beer after the money had been made up and paid in was a mere subterfuge to try to avoid the penalty of the law. It is true appellant claimed that he was doing all this without profit and merely acting as the agent for these respective parties in ordering, receiving, and having them drink the beer and procuring and having them eat the lunches in connection therewith. He also claimed that the shipments of the 70 quarts of whisky, above shown, was not all for himself, but was ordered for others, they paying him the money in advance to get it for them; but all of this was for the jury. The evidence was amply sufficient to show many more than 2 sales of intoxicating liquors, if not all, of the 18 or 19 alleged in the indictment, and the evidence was amply sufficient to show that the appellant was engaged in the business and pursuing the occupation of selling intoxicating liquors in Hunt county where prohibition was in force under said act of the Legislature.

A large number of bills of exception were taken to the proceedings and to the admission and exclusion of evidence. It will be unnecessary to take up these matters separately. We will hereinafter discuss such of them as it is necessary to notice.

Appellant also asked some eight or ten special charges which were refused. The only way error is assigned on any of these is, “The court erred in refusing to give defendant’s special charge No. -,” filling the blank with the number of the charge. This is clearly insufficient to authorize this court to consider these charges, under the uniform decisions of this court. Berg v. State, 142 S. W. 884; Ryan v. State, 142 S. W. 878, and cases there cited. However, we have looked over the charges, and in our opinion the court did not err in refusing to give them.

The act of the Legislature under which this .prosecution, was had has been uniformly and many times held constitutional. See Pitch v. State, 58 Tex. Cr. R. 866, 127 S. W. 1040, and' many cases since decided following this case. So that there was no error in the court overruling appellant’s motion to quash the indictment in this case on the ground that the said act was unconstitutional.

The record shows that prohibition was properly adopted, declared, etc., in Hunt county, before the Legislature made a single sale in violation thereof a felony, and while the violation of such law made it a misdemeanor only. The record further shows: That about June, 1911, by proper complaint and information the appellant was charged in the county court, in some eight eases, with having made separate and distinct sales of intoxicating liquors. Some, at least, of these prosecutions were based on the same sales alleged to have been made by appellant to some of the parties in the indictment in this case. That, after these prosecutions were begun, appellant made a trade with the county attorney by which it was agreed that appellant would suffer conviction in three of those cases and the county attorney would dismiss the other five, and that no other prosecution whatever should be had against appellant. All these prosecutions were for misdemeanors and all in the county court of Hunt county, Tex. That thereupon appellant did permit conviction to be had against him in three of said cases, the lowest penalty in each being assessed, to wit, 20 days in jail and a fine of $25, and the other five of those misdemeanor cases were dismissed in the county court, and the appellant at the time of the trial in this ease had suffered part, if not all, of the penalties inflicted in said misdemeanor cases. The court, without a jury, heard all the evidence on this issue and held against appellant and struck out his plea of former conviction and jeopardy and his settlement of the matter with the county attorney. The county attorney and his assistant, and the county judge, and the district attorney, denied making any such trade and agreement with the appellant in the county court eases. However, the appellant had some testimony which tended slightly to show that such an agreement may have been made and understood by the appellant. Appellant complains of the action of the court in striking out his said plea of former conviction, jeopardy, and agreement between him and said officers by which he was relieved of any further prosecution and in not submitting that question to the jury for its finding.

There was no error by the court in any of this matter. The offenses prosecuted in the county court were separate and distinct from the offense with which the appellant was prosecuted and convicted in this case, and a conviction in any and in all of said county ' court cases could. not have been a bar to this conviction. This question has already been discussed and settled by this court in Robinson v. State, 147 S. W. 245, and cases there cited; Parshall v. State, 62 Tex. Cr. R. 177, 138 S. W. 759. Besides, neither appellant’s plea alleges, nor does the proof in any way suggest, that the district court of the judge thereof, in any way, or at any time, agreed that the said prosecutions for misdemeanors in the county court cases should be any bar to the felony charge in this case.

The county attorneys and county judge, even if they had attempted it, the district attorney agreeing or ratifying it, even if he did, without this approval of the district judge, was not and could not be binding on the state. We do not intimate that any of the county officers or the district attorney made any such agreement with appellant as set up by him, nor that the suggestion thereof by the testimony on the hearing in this case would have authorized a finding that such was a fact. Johnson v. State, 148 S. W. 300; C. C. P. arts. 37, 643; Fleming v. State, 28 Tex. App. 234, 12 S. W. 605; Kelly v. State, 36 Tex. Cr. R. 480, 38 S. W. 39; Diserin v. State, 59 Tex. Cr. R. 149, 127 S. W. 1038.

The said plea of the appellant being wholly insufficient, and the offense in this case entirely different—and a felony—from those of the county court, which were misdemeanors, the court did not err in not permitting appellant to show the course of conduct and what the county attorney did in other cases in no way connected with any of these cases against appellant; and neither did the court err in refusing to permit him to show that any of the various sales in this case were the. same as those charged as single sales in the county court.

Where a person is prosecuted under the statute under which appellant was prosecuted in this case, it is always permissible to prove other sales than those specifically alleged in the indictment for the purpose of showing that it was the business and occupation of the appellant to sell intoxicating liquors. Such has been the uniform holding of this court.

The books of the express company, having been properly proven up and identified and the entries shown to have been correctly made therein, and appellant’s receipt for each item thereof having been shown, were clearly admissible in evidence. Stephens v. State, 63 Tex. Cr. R. 382, 139 S. W. 1141-1146.

It is always permissible for the court, in his discretion, to permit leading questions to be asked to an unwilling witness, and questions asked in 'such way for the purpose of refreshing the recollection of the witness. The court did not err in permitting this in this case, as complained by appellant, darter v. State, 59 Tex. Cr. R. 75, 127 S. W. 215.

By another bill it was shown that, after all the evidence and argument of the ease had been concluded, the court took a re•cess to a stated time to prepare his charge and examine appellant’s special charges. When he returned to the courtroom, it was about one hour later than the time stated for the adjournment for this purpose. When the judge returned, he found that some of the jury had become impatient at this delay. So, when he went to read his charge to the jury, he explained to them the reason of the delay, and in doing so he said to the jury, and explains the bill, as follows: “ ‘Gentlemen, it may seem that I have taken rather a long time to prepare this charge; but when it is taken into consideration that the court’s charges are prepared with the view of being criticised by lawyers, and sometimes passed on by the higher courts, and that the court has to examine the special charges, perhaps it is not so long as it may appear.’ In making the above statement I had no intention whatever that the same should be applied by any one to the case at bar, and I am satisfied that the jury did not so construe it; in fact, I feel sure that no one could construe the remarks so as to justify them in concluding that they had the least bearing or influence whatever upon the jury in passing upon this case in their deliberations. In fact, if such remarks had had the least bearing upon the jury, or any one of them, there is no doubt in my mind that the defendant’s counsel would have proven such fact upon their motion for a new trial.”. This bill presents no reversible error.

There was no reversible error shown by appellant’s first bill, wherein the district attorney, in examining the jurors before impanelment, stated to them that the law now makes it a felony with a punishment of not less than two years for a person to engage in, or pursue, the occupation of selling intoxicating liquors in local option counties, and asked them if they believed that was a good and wholesome law and ought to be enforced, as any other law on the statute books, to which they answered, “Yes, sir.” The objection being, “We object to whether its being a good and wholesome law as argumentative, tending to prejudge the facts in the case, and get the facts in advance.”

It is elementary that, when objections are made to particular portions of a charge, the whole charge must be taken into consideration in determining whether such charge is erroneous or not.

In the third paragraph of the charge, the court told the jury, in effect, that in order to constitute engaging in or pursuing the occupation or business of selling intoxicating liquors within the meaning of the law, which had in the preceding section been quoted substantially to them, it shall be necessary for the state to prove that defendant had made a least two sales of intoxicating liquors within the period of limitation. In the fourth paragraph he told them that in order to constitute engaging in, or pursuing the said occupation or business, it is necessary for the state to prove, beyond a reasonable doubt, that the defendant unlawfully engaged in and followed said occupation and business in Hunt county at any time between January 1 and June 1, 1911, and that he unlawfully made at least as many as two sales of intoxicating liquors between said dates to the parties named in the indictment. Then, in the next paragraph, he submitted the case to them correctly for their finding, and told them they must believe, beyond a reasonable doubt, that between said dates appellant did unlawfully engage in and pursue the said occupation and business as alleged in the indictment, and that between said dates alleged in the indictment he made as many as, at least, two different sales of intoxicating liquors to any of the parties named in the indictment, and if they so believed to find him guilty; but unless they so find beyond a reasonable doubt to acquit him. Then in the next paragraph he told them that if they had a reasonable doubt as to whether appellant engaged in or pursued said occupation or business in Hunt county between said dates, or if they had a reasonable doubt as to whether he made as many as two sales to any of the parties named in the indictment, to acquit him. It is unnecessary in this connection to state the other issues submitted by the court to the jury. Taking this portion of the charge as a whole, it properly and substantially submitted correctly for a finding by the jury the questions at issue. And appellant’s exceptions to said third paragraph of the charge, that it was calculated to lead the jury to believe that two sales would establish the offense and that it was on the weight of the evidence, and to the fourth paragraph, that it was on the weight of the evidence and a repetition of the third paragraph and gave undue emphasis to the idea of the number of sales required to sustain the offense, are untenable and do not present any reversible error.

There are several separate grounds of the motion for a new trial to this effect, “The court erred in the fifth paragraph of his general charge.” Then the same to the sixth, ninth, tenth, and eleventh paragraphs. These are too general and point out no specific error so as to authorize or require this court to pass thereon. Berg v. State, and Ryan v. State, supra.

In the seventh subdivision of the court’s charge he told the jury that if appellant ordered beer and whisky for the parties named in the indictment, or for others, and that he ordered it as an accommodation for said parties and collected the money from them before the order was made, then he would not be guilty of making sales of intoxicating liquors, and the jury should acquit him. In the eighth he told them that if they believed from the evidence that appellant ordered whisky and beer for the parties named in the indictment and as an accommodation for them and collected the money from the parties before the order was made, or if they have a reasonable doubt of it, to acquit the defendant. Appellant objects to these paragraphs of the charge, claiming that, whether he ordered the said liquor as an accommodation or not, he would not be guilty. These charges in this respect submitted specifically the appellant’s claim in the matter. He claimed that he ordered this as an accommodation to these parties and claimed that he collected the money therefor before he ordered it. This objection of appellant does not show any error in these paragraphs of the charge. They present the matter as favorably, if not more favorably, to the appellant than should have been done.

There being no reversible error, the judgment will be affirmed.

On Motion for Rehearing.

There are but two questions necessary to pass upon which are urged in the motion for rehearing. The first is appellant complains of the third paragraph of the court’s charge on the ground that it “was calculated to lead the jury to believe that two sales of intoxicating liquor within three years preceding the filing of the indictment will establish the offense with which the defendant is charged, and is on the weight of the evidence.” He contends that a charge substantially, if not literally, as this, was condemned and held erroneous by this court in Thomas v. State, 147 S. W. 262.

In order to properly present this question, we will state more fully the entire charge of the court on this subject, and, in connection therewith, quote the statute.

The court, in the first paragraph of the charge, in stating the ease to the jury, specifically tells them: “The defendant, Walter Wilson, stands charged by indictment in this case with the offense of unlawfully engaging in and pursuing the occupation and business of selling intoxicating liquors in 1-Iunt county, Tex., on or about the 12th day of May, 1911. To this charge he has pleaded not guilty.” (Italics ours.) This is as clear, unequivocal, and specific as language can make it. No claim can possibly be made that by this statement the jury could in any possible way conclude, or for one moment consider, that two sales of intoxicating liquors constituted the offense. The language is that he is charged with “unlawfully engaging in and pursuing the occupation and business of selling intoxicating liquors

In order to show the charge In contrast with the statute, we will, in parallel columns, quote the law and the charge:

The statute (P. C. art. 589) is: “If any person shall engage in or pursue the oeeupation or business of selling intoxicating liquors, except as permitted by law, in any county, justice precinct, city, town or subdivision of a county, in which the sale of intoxicating liquor has been or shall hereafter be prohibited under the laws of this state, he or she shall be punished by confinement in the penitentiary not less than two nor more than five years.”
The charge is: “(2) Our statute provides: ‘If any person shall engage in or pursue the occupation or business of selling intoxicating liquors, except as permitted by law, in any county, justice precinct, city, town or subdivision of a county, in which the sale of intoxicating liquor has been or shall hereafter be prohibited under the laws of this state, he or she shall be punished by confinement in the penitentiary not less than two nor more than five years.’ ”
The statute is (art. 691, P. C.): “In order to constitute the engaging in or pursuing the occupation- or business of selling intoxicating liquors, within the meaning of this law, it shall be necessary for the state to prove in all prosecutions hereunder, that the defendant made at least two sales of intoxicating liquor within three years next preceding the filing of the indictment.”
The charge is: “(3) In order to constitute the engaging in or pursuing the occupation or business of selling intoxicating liquors within the meaning of the law, it shall be necessary for the state to prove in all prosecutions for the violation of this law, that the defendant made at least two sales of intoxicating liquor within three years next preceding the filing of the indictment."

It will be seen by tbe above that the second paragraph of the charge is a literal copy of article 589 of the statute itself. That the next paragraph of the charge is almost a literal copy of the statute (article 591). The only difference is that, where the statute says “within the meaning of this law,” the court has “within the meaning of the law;” and that where the statute says “it shall be necessary for the state to prove in all prosecutions hereunder,” the charge says “it shall be necessary for the state to prove in all prosecutions for the violation of this law.” It will be seen by this that no possible difference, so far as the use of the word “the” instead of “this,” is shown, and no possible different meaning could thereby be had either directly or indirectly. Again, where the charge uses the words “for the violation of this law,” instead of the word “hereunder,” as the statute has it, following the words used, both in the law and in the charge, “it shall be necessary for the state to prove in all prosecutions,” is in effect precisely and exactly the same. It would not have been proper for the court in said third paragraph to have quoted the word “hereunder” as it is in the statute, but it was necessary and proper to use, instead, the words he did use. There is no possibility of any error in the law as stated by the court in this paragraph, and as the statute itself states it. The Legislature by specific enactment made both of these articles a necessary part of the law of this offense. Acts of 1909, p. 284. It is never error to charge the law as it is when appropriate to charge it at all.

Then immediately following the above paragraphs of the court’s charge, quoting the statute constituting the offense, he aptly combines the two and tells the jury: “(4) In order to constitute engaging in or pursuing the occupation or business of selling intoxicating liquors, it is necessary for the state to prove beyond a reasonable doubt that the defendant, Walter Wilson, unlawfully engaged in and followed the occupation and business of selling intoxicating liquors in Hunt county, Tex., at any time between the 1st day of January, 1911, and the 1st day of June, 1911, and that the defendant unlawfully made at least as many as two sales of intoxicating liquors between said dates in Hunt county, Tex., to the parties named in the indictment.” Then, immediately following paragraph 4, follow paragraphs 5 and 6, as follows: “(5) If, therefore, you believe from the evidence beyond a reasonable doubt that between the 1st day of January, 1911, and the 1st day of June, 1911, the sale of intoxicating liquors was prohibited in Hunt county, Tex., under the laws of this state, and that the defendant, Walter Wilson, did at any time between said dates, in Hunt county, Tex., unlawfully engage in and pursue the occupation and business of selling intoxicating liquors, as alleged in the indictment, and if you believe the defendant unlawfully in said county and state, between said dates, and at or about the dates alleged in the indictment, made as many at least as two different sales of intoxicating liquors to any of the parties named in the indictment, then you will find the defendant guilty as charged; but unless you so find beyond a reasonable doubt you will acquit the defendant. (6) If you have a reasonable doubt as to whether the defendant engaged in or pursued the occupation of selling intoxicating liquors in Hunt county, Tex., between the 1st day of January, 1911, and the 1st day of June, 1911, or if you have a reasonable doubt as to whether he made as many as two sales of intoxicating liquors to any of the parties named in the indictment (on) or about the dates alleged in the indictment, then you will acquit the defendant.”

In our opinion it would have been impossible for the jury to have believed from these charges that they were authorized to convict appellant if he only made two sales of intoxicating liquors, and the charge in no way can be construed to be upon the weight of the evidence.

The charge of the court and original opinion in this case is in no way in conflict with said Thomas Case, nor with the case of Floyd v. State, 147 S. W. 264, nor with the case of Malthorp v. State, 147 S. W. 1159-1161, but is in strict accord therewith. A reading of the Thomas Case will show that the charge held erroneous in that case was so held because the court specifically, as shown, by the opinion in that case, authorized and permitted the conviction of the appellant therein, because he had made two sales and only two sales of intoxicating liquors. The opinion of the court in the Thomas Case, after pointing out that there is a clear distinction made by law between the sale of intoxicating liquors in prohibition territory and the following of the business or pursuing the occupation of selling such liquors, says: “The court, however, in this case seems to make the criterion simply two sales as synonymous with pursuing the business or following the occupation of selling intoxicants.” Again, the court says: “The charge in this case makes the criterion of appellant’s guilt depend upon the fact that two sales would constitute pursuing the business. This is not correct. The statute requires that he must pursue the business or follow the occupation of selling intoxicants, and, in addition to that, must make the necessary sales.” In this case in no way did the court, either by directly so charging, or by implication, make the criterion simply two sales as synonymous with pursuing the business or following the occupation, but specifically, clearly, and without doubt, made the criterion of appellant’s guilt depend upon two things: First, that they must believe beyond a reasonable doubt that he pursued the business or followed the occupation of selling intoxicants; and, in addition, made at least two sales charged and specified in the indictment. The opinion in this case is not in conflict with any other case decided by this court under this law, but, on the contrary, is in consonance and in accord with all of them.

The only other contention urged in the motion for rehearing is his thirty-fifth ground of his motion for new trial. That ground is: “The court erred in the seventh and eighth paragraphs of his charge, in that if the defendant ordered the liquor as an accommodation to the other parties, and not as a sale to them, or if he collected the money from the other parties for the liquor before the order was made, whether he did so as an accommodation or not, he would not be guilty.” (Italics ours.) The seventh and eighth paragraphs of the court’s charge are: “(7) You are further charged that if the defendant ordered beer and whisky for the parties named in the indictment, or for others, and that the defendant ordered same as an accommodation for said parties, and that he collected the money from said parties before the order was made, then, in that event, BTe would not be guilty of making sales of intoxicating liquors, and you should acquit him in this case. (8) If you believe from the evidence that the defendant ordered whisky and beer for the parties named in the indictment and that he ordered same as an accommodation for said parties, and that he collected the money from said parties before the order was made, or if you have a reasonable doubt as to this issue, you will acquit the defendant.”

Although appellant, in the original presentation of this case, filed an extensive brief, yet he in no way therein, or thereby, presented this ground of .his motion for new trial. It will be seen by this quoted ground of his eonrplaint that his contention hinges solely around the fact that said charges required that.he ordered the liquor and collected the money for it, for the other parties as an accommodation to them, claiming that, “whether he did so as an accommodation or not," he would not be guilty. It is now, for the first time, in the motion for rehearing, claimed that these charges were erroneous in that they required the jury to believe "that he collected the money from said parties before the order was made” — quite a different thing. It is elementary that this court will not review complaints of the charge when first made in this court. In order to authorize this court to review a question, on the court’s charge, the complaint must have been in the court below, either by bill of exceptions or by motion for new. trial.

As to appellant’s said contention in the court below, the court’s charge specifically followed the evidence as made by appellant himself, and the whole of it, on this point. In the course of his testimony appellant repeatedly and at different times testified on this point. In speaking of ordering these liquors, he said: “I didn’t make any money on it, and the money was paid before I ordered. I did it for them as an accommodation.” Then, in another place, in speaking of ordering the beer and procuring the lunches, he went into a detail statement of how much the beer cost in Dallas, tlie express charges on it from Dallas to Greenville, the amount he would pay even for the postage stamp and money order, and the phone charges, and “in those beer spreads I never did make a five cents out of any of this, but I chipped in like the rest, and it was done in my name, and that was the way it was done.” Again, “At no time on these deals did I ever receive or make a five, cents out of the transaction, but I put in my money and drank it with the crowd.” Again, “I didn’t get anything out of it; never received a cent for it.” And again, “I was doing all this business for accommodation.”

So that the court’s charge in said paragraphs 7 and 8 on the ground of complaint made by the appellant in the court below was specifically and directly applicable to appellant’s own testimony and his then claim and contention.

On the other point and contention now for the first time made, if wé could consider it, the charge was equally applicable and stated the correct principle under the case made and contention of the parties. The state’s contention in the court below on this point was: First, that appellant did not order the intoxicating liquors as an accommodation or otherwise for the parties as he claimed he did, but that each order was, instead, a direct sale from him to these respective parties; second, his contention was that in every instance where he made the orders for these liquors, in order to show he did not sell to them, he claimed that he collected the money from the parties before he ordered the liquor, the state contending that he did not do so, but that he frequently and repeatedly collected the money from the parties after he had ordered the liquor, and frequently, after the liquors had been actually received and were then ready to be delivered or drunk, thereby making, instead of an order for other parties with their money, a direct sale to them by him. So that in our opinion these respective charges 7 and 8 correctly presented the questions to the jury, as raised by the parties on the trial.. And appellant’s contention in either contingency, whether made in the court below, or first made in this, presents no reversible error.

The motion for rehearing is overruled.  