
    KITCHEN v. STATE.
    (No. 8161.)
    (Court of Criminal Appeals of Texas.
    Oct. 8, 1921.
    Rehearing Denied Dec. 3, 1924.
    Application to File Second Rehearing Denied Jan. 14, 1925.)
    1. Criminal law <&wkey;982 — Suspended sentence privilege denied prisoners over 25 years of age when convicted.
    Acts 37th Leg. (1st Called Sess. 1921) c. 61, § 2d (Vernon’s Ann. Pen. Code Supp. 1922, art. 588%&4), denying suspended sentence privilege to persons over 25 years of age, convicted of sale of intoxicating liquor, applies to age at time of conviction, not time of offense.
    On Motion for Rehearing.
    2. Criminal law <&wkey;823(2)— Charge “words need not be spoken to constitute a sale, it may he inferred from the conduct of the parties,” not harmful in view of other charge.
    Charge “words need not be spoken to constitute a sale, it may be inferred from the conduct of the parties,” held not harmful, as on weight of evidence in view of other charge.
    3. Indictment and information &wkey;>!69 — Testimony as to prior purchase of whisky by witness held admissible.
    Testimony that witness purchased whisky from accused three weeks prior to present transaction held admissible under indictment that accused sold whisky to such witness.
    Appeal from District Court, Garza County; Clark M. Mullican, Judge.
    Oliver Kitchen was convicted of the sale o5t intoxicating liquor, and he appeals.
    Affirmed.
    J. IT. Cunningham, of Abilene, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for the sale of intoxicating liquor; punishment, one year in the penitentiary. Appellant filed application for suspended sentence, in which it was averred that he was less than 25 years of age when the offense was committed and the indictment returned, but did not allege that he was under such age at the time of trial; because of failure to so allege the state moved to dismiss the plea. The court found upon hearing the motion that appellant was over 25 years of age at the date of trial, but under said age when the offense was committed and indictment returned. Upon ascertaining these facts the plea for suspended sentence was stricken out, and this action of the court is assigned as error.

Section 2d, c. 61, Acts 1st Called Sess. 37th Leg. (Vernon’s Ann. Pen. Code Supp. 1922, art. SSS^al), provides that no peráon over 25 years of age who jnay be convicted of violating any provision of the act prohibiting the manufacture, sale, etc., of intoxicating liquor, shall have the benefit of the suspended sentence law. We think the age at the time of trial controls, and that the court committed no error in striking out the plea of suspended sentence; In Davis v. State, 93 Tex. Cr. R. 192, 246 S. W. 395, it was said:

“By the terms of chapter 61, General Laws of the First and Second Called Sessions of the Thirty-Seventh Legislature, the benefit of suspended sentence is denied to any person convicted of a violation of the present liquor law, who at the time of such conviction is over 25 years of age.”

This was reaffirmed in Blonk v. State, 93 Tex. Cr. R. 638, 248 S. W. 375. In Holdman v. State, 94 Tex. Cr. R. 433, 251 S. W. 218, is found the following statement:

“The offense with which he was charged was not within the operation of the suspended sentence statute if the accused was, in fact, over 25 years of age. It is not shown by a bill of exceptions that he was under that ag'e. The motion is not verified by affidavit and contains no recital touching the age of the appellant at the time of the trial. It should be made known to this court that he was under 25 years of age at the time of his trial, otherwise the suspended sentence law would have no application to him and the action of the trial court deprived him 'of no right, and the granting of a new trial would serve no useful purpose.”

Holdman’s Case is cited with approval in Davidson v. State, 95 Tex. Cr. R. 638, 255 S. W. 404. See, also, Rhodes v. State (Tex. Cr. App.) 262 S. W. 753; Boyd v. State (Tex. Cr. App.) 262 S. W. 499; Davidson v. State, 95 Tex. Cr. R. 638, 255 S. W. 404; Boortz v. State, 95 Tex. Cr. R. 479, 255 S. W. 434; Hooper v. State, 94 Tex. Civ. App. 278, 250 S. W. 694.

We find-no statement of facts in the rec-, ord, and the absence thereof renders it impossible for us to pass upon the objection to the charge defining a “sale.” What would be a proper definition under some state of facts would be entirely inapplicable under other circumstances, and, not being apprised of the evidence in the case, we must assume the charge given was a proper one. The same applies to the complaint at the reception of certain evidence set out in bill of exception No. 2. The bill states the grounds upon which objections to the evidence were urged, but the existence of the facts upon which the objections were based is not certified. Necessarily, in this condition of the bill, and in the absence of the facts proven, this court 'has no way of ascertaining the force of the complaint.

The judgment is affirmed.

On Motion for Rehearing.

MORROW, P. J.

Since the original opinion was delivered the clerk of the trial court has forwarded the statement of facts which, by oversight, he had previously neglected to send. According to the testimony of William Patton, he had been acquainted with the appellant for several years.- On the occasion in question, the witness overtook the appellant and got from him a quart of whisky. We quote from the witness’ testimony thus:

‘■The reason I thought I could get it was I had got some whisky from him just a little while before that, about three weeks before that, and that’s the reason I went to him again. As to what was said about settling with him, I told him I would see him when I got back to town, and he said: ‘All right.’ I went out there to get whisky from him, and that’s what I got from him. I don’t know whether it was corn whisky or not, but it tasted like whisky. That was what I supposed to get from him. At that time I knew what he was selling his whis-ky for; he got $5 a quart for it.”

On cross-examination the witness said:

“I saw the defendant riding out in the direction of the west part of town, and I went out there and got some whisky. Before X got out there, I saw he was stopped. * * * He said he had tire trouble. I might have then told him I wanted a drink of whisky; it might have been that way. Then he went out in the weeds and got a bottle of whisky. * * * He took a drink, and I then asked for a second drink, and he gave it to me; I put it in my pocket and said I would see him later about it. * * * Nothing was said with reference to the price. I never did pay him any money for it.”

Appellant testified that he had bought a quart of whisky and had put it out by the road; that he went to get it when Patton drove up. From the appellant’s testimony we quote:

“So X got the bottle, and he taken a drink and I taken a drink, and then he put this bottle in his car and said, ‘I’ll see you later.’ I "told him it was not my whisky, and he says: ‘All right; I’ll take this; we will fix this later.’ ”

Appellant denied that he had sold the whis-ky to' Patton. He also denied that he had ever sold whisky or had ever fixed the price at $5 a quart. From his testimony we quote further:

“I sure did buy that whisky to drink myself. I wanted it for my own use, yet I let him go out there and take my whole supply of whisky off, because I supposed he would replace it, or get me some more whisky in the place of it.”

The court in his charge defined “sale” as a transaction wherein one person, the seller, delivers the title and possession of intoxicating liquor to the buyer upon the agreement that the buyer pays or agrees to pay to the seller therefor; that an agreement may be inferred from the conduct of the parties; that if one in the possession of personal property permits another to take it with the understanding that the same is to be paid for, such transaction would be a sale.

The court submitted the converse of the proposition, telling the jury that if they believed from the evidence that Patton acquired the whisky in question from the defendant in any mode or manner other than the sale as defined, or if they had a reasonable doubt thereof, they would acquit. Against the charge the point is made that the expression “words need not be spoken to constitute a sale; it may be inferred from the conduct of the parties” was upon the weight of the evidence.

Complaint is also made of the admission in evidence of the testimony of the state’s witness in which he said that the reason he went to the appellant to get whisky was because he thought he could get it; that he thought he could get it because he had gotten some whisky from the appellant about three weeks previous to the present transaction.

The evidence that the witness had bought whisky from the appellant three weeks before the present transaction would seem to have been admissible under the averment in the indictment charging that the appellant sold whisky to the witness, Patton. So far as relates to the admissibility of the testimony against the objections interposed, it would have been permissible for the state to have relied upon either the former or the present transaction. Under the record before us, the opinion,is entertained that there was no harmful fault in the charge.

The motion is overruled.

On Application to File Second Motion for Rehearing.

HAWKINS, J.

Appellant bases his request to file a second motion for rehearing on the ground that the facts were not considered by us until the first rehearing.

The only part of the present motion to which we advert is the portion grounded upon the last paragraph of the opinion, on rehearing which did read: “The evidence that the witness had bought whisky from the appellant three weeks before the present transaction would seem to have been inadmissible,” etc. The use of the words “inadmissible” is a typographical error which escaped us. It should have been “admissible.” The opinion has been corrected to so read.

Believing there is no merit in the present motion, leave to file same is denied. 
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