
    GREER v. STATE.
    (No. 8888.)
    (Court of Criminal Appeals of Texas.
    May 20, 1925.
    Rehearing Denied June 24, 1925.)
    1. Intoxicating liquors <&wkey;238(l) — Refusal to give peremptory instruction held proper in prosecution for selling.
    Refusal to give peremptory instruction held prpper-in prosecution for selling.
    2. Criminal law &wkey;>l09l(ll) — Bill of exceptions in question and answer form cannot be considered.
    Bill of exceptions in question and answer form cannot be considered, under Code Cr. Proc. 1911, art. 846.
    3. Criminal law <@=814(3) — -Not incumbent upon trial court to submit issue unless supported by facts in evidence.
    It is not incumbent upon the trial court to submit an issue, unless it is supported by facts in evidence.
    4. Intoxicating liquors <&wkey;239(2) — Refusal to submit issue of sale for medicinal purposes held proper, in view of absence of evidence justifying such charge.
    Refusal to submit issue of sale for medicinal purposes held proper, in view of absence of evidence or claim that liquor was sold for such purposes.
    5. Criminal law &wkey;>829(l) — Refusal to give requested special charge, on issue covered by court’s main charge, held not error.
    Refusal to give requested special charge, on issue covered by court’s main charge, held not error.
    6. Intoxicating liquors <@=>239(1,0) — Refusal to define term “sale” held not error.
    In prosecution for sale of intoxicating liquor, refusal to define the term “sale” held not error, where there was no possibility under the evidence of confusing the jury on the subject, there being no claim that the transaction was a gift or anything save and except a sale.
    Appeal from. District Court, Fort Bend County; M. S. Munson, Judge.
    Willie Green was convicted of selling intoxicating liquor, and be appeals.
    Affirmed.
    C. I. McFarlane, of Houston, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris,. Asst. State’s Atty., both of Austin, for tbe State.
   LATTIMORE, J.

Conviction in district court of Fort Bend county of selling liquor; punishment, one year in the penitentiary.

The principal state witness testified posh tively that, on the occasion ,in question, be bought whisky for which be paid this appellant $2, and that .upon her claim that she was entitled to something for going and getting it for him, be paid appellant’s codefendant 25 cents. It further appears that when this state witness went to tbe bouse of appellant and wanted whisky, it was claimed both by appellant and bis codefendant that there was none in tbe bouse, but that they could get it for him. Tbe woman, appellant’s codefendant, went out of tbe bouse and came back in two or three minutes with tbe whis-ky. She banded it to appellant, and be banded it to witness, who paid him as above stated. Shortly after this officers searched appellants premises and found in a bouse in tbe yard several containers of large size, each having in them enough whisky to indicate what same bad contained. Appellant was tbe proprietor of a rooming bouse, bis codefendant was bis cook and, general manager in bis absence. Both testified for tbe defense, being jointly indicted. Neither claimed to have gone to any other person or to have left tbe premises or to have bought whisky at the request of tbe state witness. Both denied seeing him or being paid any money by him, or letting him have any whisky on said occasion under any kind of circumstances. In bis charge tbe learned trial court gave to the jury an acceptable charge on alibi, and also told them in, another paragraph that if they believed or bad a reasonable doubt of tbe fact that defendants, or either of them, procured tbe whisky for prosecuting witness, and that they did not own said whisky, but acted as tbe agent of said witness in purchasing same for him from some other party, then tbe defendants should be acquitted.

Appellant’s first bill of exceptions complains of tbe refusal of a peremptory instruction, in which there was no error; and bis second bill of exceptions is in question and answer form, and, therefore, violative of the provisions of article 846 of our C. C. P., and cannot be considered under many decisions by this court.

The third complaint is of the refusal of a special charge, seeking to submit the issue of a sale for medicinal purposes. It is not incumbent upon the trial court to submit an issue unless supported by facts in testimony. Neither appellant nor his codefendant claimed to have sold whisky for medicine, and the state witness testified that he did n’pt claim that he was sick. He only said that he told appellant that he felt bad and was drowsy. There was no such evidence before the court as to call for the giving bf said special charge.

Appellant’s special charge, submitting the theory of agency, was refused because the subject was entirely covered, and properly so, by the court’s main charge, which is above referred to.

We find nothing in appellant’s cojnplaint directed at the failure of the court to define the term “sale.” There was no possibility of confusion in the minds of the jury on the subject. It was not claimed that the transaction might be a gift or anything else save and except a sale.

Believing the facts to support the judgment, and that the record evidences that appellant received a fair trial, an affirmance is ordered

On Motion for Rehearing

Appellant takes issue with us, first, because we did not hold that the trial court erred in refusing an instructed verdict; and, second, in concluding that the evidence did not call for a charge submitting the theory of a sale for medicinal purposes. Both of these matters were discussed in our original opinion. As stated there, the state’s case was fully made out by her witness in chief, who testified that he bought from appellant and his codefendant the whisky in question. Asitherieiit stated, appellant defended wholly upon the proposition that he made no sale, and this defensive theory was cared for, in the charge of the court, and decided against appellant’s contention. We have again reviewed the testimony for the state, and think it wholly fails ■ to call for the presentation of said special charge.

The motion for rehearing will be overruled. 
      @=?For other cases see same topic and KEY-NXJMEER in ail Key-Numbered Digests and Indexes
     