
    NELSON v. STATE.
    (No. 11065.)
    Court of Criminal Appeals of Texas.
    Oct. 26, 1927.
    1. Intoxicating liquors &wkey;»223(6) — Evidence showing liquor sale to deputy acting under sheriff’s instructions supported indictment alleging sale to single purchaser.
    In prosecution for selling intoxicating liquor, evidence showing that defendant sold whis-ky to deputy sheriff, who paid for it with money partly belonging to him, and who was acting under sheriff’s instructions, and that whisky was turned over to sheriff, did not show joint sale of liquor to deputy sheriff and sheriff, but supported indictment that sale was made to single purchaser.
    2. Criminal law &wkey;>982 — Charge, in prosecution for selling whisky, that suspension of sentence is discretionary with jury, and court must follow jury’s recommendation to suspend, was not prejudicial error.
    In prosecution for selling intoxicating liquor, charge that jury should bear in mind that it was only discretionary with jury as to whether they would recommend suspension of sentence, and that it was obligatory on court to suspend sentence, if jury made recommendation, was not more inclusive than Code Cr. Proc. 1925, art. 776 et seq., governing suspension of sentence, and was not prejudicial error.
    3. Criminal law t&wkey;404 (4) — -Admission of whis-ky identified as purchased from defendant was not error.
    In prosecution for selling intoxicating liquor, admission in evidence of whisky identified by state’s witness to have been purchased from defendant was not error.
    Commissioners’ Decision.
    Appeal from District Court, Lubbock County ; Clark M. Mullican, Judge.
    J. B. Nelson was convicted of selling intoxicating liquor, and he appeals.
    Affirmed.
    Vickers, CampbeE & Sehenek,- of Lubbock, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is the sale of spirituous, vinous, and malt liquors, containing in excess of 1 per cent, of alcohol by volume ; the punishment confinement in the penitentiary for one year.

Appellant contends that the state’s evidence shows a joint sale of intoxicating liquor to Bob Crump and H. L. Johnson, sheriff, and that this proof does not support the allegation in the indictment that the sale was made to a single purchaser, namely Bob Crump. We are unable to agree with appellant that his position is tenable.

The state’s testimony, in substance, was this: Bob Crump, deputy sheriff, went to the hotel where appellant was employed, and asked appellant if he had any whisky. Spencer Miles, commonly called Blackwax, was present at the time the conversation was had with appellant. Miles told appellant that it was all right — to get the whisky if he had any. Appellant went upstairs, and came back shortly with a pint of whisky. Crump paid appellant $3 for the whisky, and appellant delivered the whisky to him. Crump took the whisky to the sheriff’s office, and delivered it to Vernice Ford, deputy sheriff. Before making the purchase of the whisky, 'Grump had been to the sheriff’s office, and had gone to the hotel under the sheriff’s instructions. He testified that he did not remember whether the sheriff gave him any money with which to purchase the whisky; that part of the money he paid for the whis-ky was his own money; and that some of the money was furnished him; that he bought the whisky and turned it over to the sheriff; and that he still had some money in it. The sheriff was not present at the time of the purchase of the whisky.

Appellant relies on the cases of Elliott v. State, 102 Tex. Cr. R. 186, 277 S. W. 141, and Asher v. State, 102 Tex. Cr. R. 162, 277 S. W. 1099, to support his contention. In those cases, and in the case of Brown v. State, 102 Tex. Cr. R. 54, 276 S. W. 908, this court held that the name of the purchaser in an indictment charging the sale of intoxicating liquor is descriptive of the offense, and that an averment of a sale to one is not supported by proof of a sale to two or more, and vice versa. The facts of the instant case easily distinguish it from the cases relied upon by appellant. Here we have appeUant and one person consummating the transaction, whereby appellant delivered Whisky to one person and received from that person the purchase price of the whisky, whereas, in the eases cited by appellant, the court was concerned with facts showing the presence and active participation in the transaction of more than one purchaser at the time of the sale. In the Asher Case, supra, the facts showed that the purchaser of the whisky had received marked money from another person, which he used in purchasing the whisky; his purpose being to detect illicit sales of liquor. This court sustained the action of the trial court in that case, in refusing to recognize in his charge that the purchaser was the agent of the person furnishing the money, and said that the evidence showed a sale to the party to whom the acpused delivered the whisky. In the present case, the record shows that appellant was not aware of any interest the sheriff might have had in the purchase of the liquor. He knew in the transaction only the person named in the indictment as the purchaser. As disclosed by the record, the proof supported the averment in the indictment of a sale to one:

We are unable to sustain appellant’s contention that the court committed prejudicial error in that portion of the charge wherein the jury were instructed that they should hear in mind that it was wholly discretionary with the jury as to whether they would recommend a suspension of the sentence, and that it was obligatory on the court to suspend the sentence, if the jury made the recommendation. The instruction is not more inclusive than the provisions of the statute (Code Or. Proe. 1925, art. 776 et seq.) governing the suspension of sentence.

Appellant complains of the action of the court in permitting toe state, over his objection, to offer in evidence the whisky shown by the state’s testimony to have been purchased from him. We can perceive no error in the action of the court. The whisky was identified by the state’s witnesses as the whisky purchased from appellant. Norton v. State, 102 Tex. Cr. R. 213, 277 S. W. 141.

We have not undertaken to discuss in detail other matters complained of by appellant as error, but have carefully considered them, and find no reversible error.

The judgment is affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
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