
    VEACH v. STATE.
    (Court of Criminal Appeals of Texas.
    June 25, 1913.
    Rehearing Denied Oct. 22, 1913.)
    1. Ckimxnal Daw (§ 1090) — Bill cut Exceptions — Necessity.
    In the absence of bills of exception, complaints to the admission of testimony cannot be reviewed.
    IEd. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 2653, 2789, 2803-2822, 2S25-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    2. Criminal Daw (§ 925) — Misconduct of Jury — New Trial.
    That the foreman of the jury upon retiring stated to the others that they could not consider the fact that accused did not testify does not, where there was no discussion of the matter, constitute misconduct authorizing a new trial, being a mere reiteration of the •charge of the court.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§2238-2247, 2250; Dee. Dig. § 925.]
    -3. Criminal Daw (§ 829) — Triai^-Instruc-TIONS.
    The refusal of special charges covered by •the charge given is not error.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. § 2011; Dec. Dig. §■ 829.]
    ■4. Intoxicating Diquors (§, 148) — 'Offenses —“Sale”—What Constitutes.
    Where the possessor of intoxicating liquors •allowed another to take a quantity in consideration of his promise to subsequently return the same quantity of liguor, .there was a sale within the purview of the local option acts.
    [Ed. Note. — For other cases, see Intoxicating Diquors, Dec. Dig. § 148.
    
    For other definitions, see Words and Phrases, vol. 7, pp. 6291-6306; vol. 8, p. 7793.]
    •5. Intoxicating Diquors (§ 236) — Offenses — Evidence—Sufficiency.
    In a prosecution for the selling of intoxi-■eating liquor in prohibition territory, evidence held sufficient to support a conviction.
    • [Ed. Note. — For other cases, see Intoxicating Diquors, Cent. Dig. §§ 300-322; Dec. Dig. § •236.]
    Davidson, P. J., dissenting.
    Appeal from District Court, Montague •County; C. F. Spencer, Judge.
    W. T. Veach. was. convicted of selling intoxicating liquors in prohibition territory, •and he appeals.
    Affirmed.
    W. S. Jameson, of Montague, H. F. Wel•don, of Bowie, and Seb F. Caldwell, of Austin, for appellant. C. E. Dane, Asst. Atty. ■Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted .and convicted of selling intoxicating liquor in prohibition territory, and his punishment assessed at one year’s confinement in the .penitentiary.

In the motion complaint is made as to the admissibility of certain testimony. No bills of exception were reserved; consequently we cannot review those grounds. o

The fact that the foreman of the jury on their retirement stated to the others that they could not consider the fact that appellant did not testify was but a reiteration of the charge of the court to the jury. It is not sought to be shown that such fact was offered to be discussed. The other grounds alleged as to the misconduct of the jury are equally groundless.

The special charges requested were covered by the court’s main charge, and there was no error in refusing them.

The only ground in the motion that presents a question for serious consideration is the one that alleges the insufficiency of the testimony to support the verdict. Several witnesses testify that about the 2d day of October they went to appellant’s wagon yard and camp house; that when they went in appellant was filling bottles with whisky; that there were about a dozen bottles on the table; that two gallon jars of whisky were in the house and another was found in the manure pile just outside of the house; that two bottles of whisky were found in another room. It is further shown that about this time Harry Winn went up to appellant’s place and was given a drink of whisky by him; that he then left but when he decided to leave town he returned and took another drink with appellant, then placed the bottle in his pocket, remarking to appellant that he would take it “and would make it all, right with him; that he intended to repay appellant by returning to him a like quantity of whisky.” If this is true, under our decisions this would be a sale; and, while the testimony of this witness is not very satisfactory, yet there is no denial that this really and truly represents the transaction, and the jury under a proper charge finds appellant guilty. The trial court heard the testimony and overrules the motion; and shall we at this distance say this testimony does not show a sale under our decisions, although this witness testifies in a way that we do not feel like giving but little credence to his testimony? The jury gave it sufficient credit to find appellant guilty; and, taking into consideration the quantity of whisky appellant is shown to have had on hand at this time, we cannot say there is not sufficient evidence to sustain the verdict.

The judgment is affirmed.

DAVIDSON, J. I refer to Ross v. State, 159 S. W. 1063, for my views in this case.  