
    McELWEE v. STATE.
    (Court of Criminal Appeals of Texas.
    April 8, 1914.)
    1. Criminal Law (§ 730) — Trial — Argument of Prosecuting Attorney.
    Where, in a prosecution for violating the local option law, defendant claimed that he obtained the whisky from C. as prosecutor’s agent, a statement, ma.de by the prosecuting attorney in argument, that the fate of C. rested on the jury’s verdict, and, if they found “this negro [defendant] not guilty, the attorney would have C. in jail just as soon as the verdict was returned, was improper, but was cured by an instruction directing the jury not to consider it.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1693; Dec. Dig. § 730.]
    2. Intoxicating Liquors (§ 239) —-Trial — Conflicting and Contradictory Instructions.
    Defendant, in a prosecution for violating the local option law by selling certain whisky to S. and delivering it to his son, claimed that he merely acted as the agent of S. to procure the whisky from C. The court especia,Uj charged, at defendant’s request, that if defendant, in compliance with S.’s request to get him some whisky, procured the same, and defendant had no interest in the whisky, but merely acted as the agent of S., he was not guilty, but in the main charge declared that if money was paid to defendant by S., and the whisky was delivered to his son by defendant, that would constitute a sale to the son, and the jury should find defendant guilty, unless they had a. reasonable doubt concerning the same, in which case they should acquit. Held, that the instructions were conflicting and contradictory, and that the charge in effect withdrew defendant’s defense of agency from the jury.
    [Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. §§ 331-347; Dee. Dig. §• 239.]
    3. Intoxicating Liquors (§ 167) — Wrongful Sale — Indictment—Variance.
    Proof that S. approached defendant and asked him if he knew where he (S.) could get a quart of whisky, that defendant replied that he thought he did, whereupon S. gave defendant $1.50 and told him to deliver the whisky to S.’s son, which he subsequently did, showed a sale-of whisky to S., and was therefore insufficient to support an indictment charging a sale to the son.
    [Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. §§ 182, 183; Dec. Dig. §■ 167.]
    Appeal from Nacogdoches County Court;. Geo. E. Ingraham, Judge.
    Will McElwee was convicted of violating-the local option law, and be appeals.
    Ee-versed and remanded.
    V. E. Middlebrook, of Nacogdoches, for appellant. C. E. Lane, Asst. Atty. Gen., for the-State.
    
      
      For other cases see.same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes-
    
   ■ DAVIDSON, J.

Appellant was convicted of violating the local option law.

Without dispute or question this record discloses that Jabez Scott approached appellant and ashed him if he knew where he (Scott) could get a quart of whisky. Appellant said he thought he did. Scott asked appellant how much it would cost, and appellant said, “$1.50.” He then asked appellant how long it would take him to get the whisky. He said, “About 20 or 25 minutes.” Scott did not have time to wait, so he gave appellant the $1.50 and told him that his son, Wm. Scott, would wait and get the whisky, and he instructed appellant to deliver the whisky, when purchased, to his son,-Wm. Scott. Jabez Scott so testifies for the state, as does Wm. Scott. It is further testified that Wm. Scott was present, and heard all the conversation, and waited for the whisky, and that appellant brought the whisky to him for his father. These facts are undisputed. Appellant testifies to the same facts, and further testifies he had no interest in the whisky, nor did he get any part of the $1.50. He demurred to giving the name of the man from whom he purchased the whisky for Scott, but, when being pressed for it, he gave the name of John Crawford. He says that Randolph Smith showed him the man from whom he got the whisky. Smith is dead; he was killed during Christmas week. Appellant further testified: “The man I got the whisky from is a white man. I know him now, but I did not know his name when I got the whisky. I am afraid to tell his name. I am scared to tell it; but, if I have to, I have to. It was Mr. John Crawford.” John Crawford testified that he did not sell appellant the whisky, and that he never delivered any whisky to appellant. This is, in substance, the case.

The only disputed question seems to arise on' the contradiction in the testimony between appellant and Crawford. The evidence, then, seems to be clear that Jabez Scott gave appellant $1.50 with which to buy him some whisky; that, not having time to wait for the whisky, Scott instructed appellant to turn it over to his son, which was done. Appellant claims to have bought the whisky from Crawford as the agent of Scott, and that he (appellant) did not sell any whisky, and had no interest in it. This was denied by Crawford. The sale was alleged to have been made to Wm. Scott, and not to his father, Jabez Scott. The prosecuting attorney uses this language in his argument: “On your verdict rests the fate of John Crawford. If you find this negro not guilty, I will have John Crawford in jail just as soon as you return your verdict.” The court instructed the jury not to consider this argument, as it was improper. The court was correct in this. The argument should not have been used; but, in view of the instructions, it may not be sufficient to justify a reversal on that ground.

At the request of the county attorney the following instruction was given: “You are instructed that if you find from the evidence that the money was paid to Will Me-Elwee by Jabez Scott, and the delivery was made to William Scott, this would in terms of law be a sale to William Scott, and you will find the defendant guilty, and assess his punishment as stated in the main charge; and if you have a reasonable doubt of the' same you will acquit the defendant.” Proper exception was reserved to this, on the ground that it was on the weight of the evidence, and virtually an instruction to find the appellant guilty, and under the undisputed facts the jury. could do only one thing under this charge, and that was to find appellant guilty, and that it was also a direct contradiction of the defendant’s special charge on agency, which was given by the court, and took the proposition of agency entirely away from the jury. This hill of exceptions was approved by the trial judge, with the explanation that the two special charges mentioned were about different phases of the case, and not contradictory, as he understood them. The special charge given at request of appellant is as follows: “You are further instructed that if Will MeElwee was asked by Jabez Scott if he could get him some whisky, and the defendant in compliance with the request did get him the whisky, and the defendant had no interest in the whisky, but was acting as the agent of Jabez Scott, he is not guilty, and you will so find, if you believe he so got the whisky; or if you have a reasonable doubt as tp whether he so got the whisky for Jabez Scott, you will find him not guilty.” We are of the opinion that the two charges, the one asked by the county attorney and the one given at request of defendant, are conflicting and contradictory; and we are further of the opinion that the court’s charge was on the weight of the evidence, and assumes a most material fact in the case against the defendant, and ignores appellant’s defense in the special charge given at the request of the county attorney. If appellant bought the whisky for Jabez Scott, and did not sell it or have any interest in the sale, he would be acting as agent, and not guilty. The state met this testimony with that of Crawford, which raised the issue sharply as to sale. Under the county attorney’s instruction, appellant would he guilty if Jabez Scott paid MeElwee, appellant, the money, and the whisky was delivered to Wm. Scott, his son, whether appellant was the agent or not. If he was the agent of Jabez Scott, he would not be guilty.

This brings up another question which is- directly an issue in the case, and it is this: The charge against appellant was for selling intoxicating liquors to Wm. Scott. The facts show if he sold it, it was to Jabez Scott, and not Wm. Scott. When the trade was made, there was present Jabez Scott and his son, Wm. Scott, and appellant Wm. Scott knew all about the facts of the case, and. had no interest in it at all, except to receive the whisky from appellant for his father. His father had paid the money in advance for the whisky. The sale, therefore, would be to Jabez Scott, and not to Wm. Scott’. The facts are pointed and positive. There is no contradiction of the fact that appellant, if he was guilty at all, was guilty of selling to Jabez Scott, and not Wm. Scott. The trade was made and the money paid in advance, and Wm. Scott remained, because his father did not have time to do so, to get the whisky in ease appellant should deliver it, not for Wm. Scott, but for Jabez Scott.

For the reasons indicated, the judgment is reversed, and the cause remanded.  