
    BRAMBLETT v. STATE.
    (No. 7458.)
    (Court of Criminal Appeals of Texas.
    April 18, 1923.)
    Intoxicating liquors <§=3239(10) — Refusal to define sale in prosecution for unlawful sale of liquor held error.
    In a prosecution for the unlawful sale of intoxicating liquor involving an issue as to whether the alleged purchaser had merely loaned money to the defendant expecting repayment, and the defendant had given him whisky without expected compensation, or whether the transaction was a camouflage to cover a sale of whisky, the court’s refusal to define a sale held reversible error.
    Appeal from District Court Coryell County; J. R. McClellan, Judge.
    Nick Bramblett was convicted for the sale of intoxicating liquor, and he appeals.
    Reversed and remanded.
    T. R. Mears, of Gatesville, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction is for the sale of intoxicating liquor. Punishment is one year in the penitentiary.

Ogden Harris, the alleged purchaser, testified to two transactions relative to whisky with appellant. The first one inquired into failed to develop a sale, and the court withdrew from the consideration of the jury all testimony relative thereto. The testimony of Harris incident to the alleged sale upon which the state elected to prosecute is as follows:

“Q. Mr. Harris, when was that you made that loan? Tell the jury the circumstances of that loan, and about where it was. A. I don’t remember where it was. It was before May 27th. It has been since spring, this year. I don’t remember just when. Q. Tell the jury about that matter. A. About me lending him $5? Well, we were over there on the river close to his house, in Coryell county, Tex., and he wanted to borrow some money from me, and I loaned him $5, and I stayed with him some time. I asked Nick if he wouldn’t get me some whisky, and he said he would. He told me where I could get it, and I got it. Nick hasn’t never paid me the $5 back, and I never have paid him the quart of whisky back.”

Cross-examination:

“Q. Mr. Harris, you say you loaned him $5? A. Yes, sir. I was a merchant at Purmela. He had an account with me. I have sold Nick goods on a credit. When I loaned him the money, I set it down on the books. He owes me that $5. I expect him to pay it. I did not buy it from him. He did not offer to sell it to me. I did not ever expect to pay him for it. I thought he gave me the whisky, and I asked him for it. He has given me whisky. I went up to his house, or near his house on the river.”

Redirect examination:

“Q. For the purpose of refreshing your recollection, didn’t that occur in this way: T let him have $5, and he told me where I could find a quart of whisky at a certain place. I did not return the whisky, nor did Nick ever return, the money.’ A. No, sir; that is the way you wrote it in the grand jury. Q. Wasn’t your recollection just, as good then as it is now? A. I told you then you didn’t write it as I seen it. I thought it meant what you were striking at. I do not know whether Nick has got that down on his books or not; I never spoke to him about it.”

Recross-examination:

“I stated I didn’t buy it from him, and I believed I wasn’t paying for it.”

The court omitted from his charge any definition of what would constitute a sale. Appellant excepted because of such omission and presented a special charge supplying it, which was refused. The learned trial judge qualifies the bill by stating that the charge given in the instant case was substantially the same as that given in the case of Willie Young v. State. This is quite true, but an examination of the Young Case, 243 S. W. 472, will disclose that the facts are entirely different. The prosecuting witness in the Young Case testified that he bought whisky from the defendant and afterwards paid him $5 in money. No issue was raised in that case as to whether the transaction testified about was a sale. In the instant ease it is patent from the testimony of the alleged purchaser that it leaves an issue to be settled by the jury whether, on the one hand, he had loaned money to appellant charging it against him on the mercantile account expecting repayment, and whether appellant had given him the whisky without expected compensation, or, on the other hand, whether the transaction was a camouflage to cover a sale of whisky. The learned trial judge fell into error in not giving to the jury the definition of a sale in order that they might have the benefit thereof in determining the direct issue raised by the testimony.

If the undisputed proof shows that the transaction, if it occurred at all, was a sale, it is not error to refuse to define the term sale, but where the transfer of whisky is made in such a manner as that it becomes a question as to whether it was a sale, then it is necessary for the court to define that term. Stephens v. State, 50 Tex. Cr. R. 251, 96 S. W. 7; Trinkle v. State, 60 Tex. Cr. R. 187, 131 S. W. 583.

For the error discussed, the judgment must be reversed, and the cause remanded. 
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