
    KNIGHT v. STATE.
    (No. 9697.)
    (Court of Criminal Appeals of Texas.
    Jan. 20, 1926.
    Rehearing Denied March 10, 1926.)
    1. Criminal law <&wkey;l 186(4)— Possession for sale being shown, charge that accused could be guilty if companion had such possession with accused’s knowledge if error was harmless (Vernon’s Ann. Cod© Cr. Proc. 1916, art. 743).
    Possession of intoxicating liquor for sale being shown, charge that accused could be guilty as principal, if companion had such possession, and accused knew his intention, and aided him in possession, if error, was not reversible, under Vernon’s Ann. Code Cr. Proc. 1916, art. 743.
    2. Criminal law <&wkey;772(6).
    Affirmative defense must be presented in affirmative charge, if the evidence reasonably requires it as applicable.
    3. Intoxicating liquors i&wkey;239(2) — Failure to charge on possession for medicinal purposes was not error in prosecution for unlawful! possession, under evidence.
    Evidence held so weak as to not make failure to charge on theory of possession for medicinal purposes, in prosecution for unlawful possession of intoxicating liquor, reversible error.
    On Motion for Rehearing.
    4. Intoxicating liquors <&wkey;239(3) — ■In prosecution for possessing intoxicating liquor for sale, refusal to charge on theory of agency1 for purchaser held not error under evidence.
    In prosecution for possessing intoxicating liquor for sale, refusal of charge that accused could not be convicted, if the agent of purchaser, was not error, as evidence did not sufficiently raise the issue.
    Commissioners’ Decision.
    Appeal from District Court, Potter County; Henry S. Bishop, Judge.
    Elnor Knight was convicted of possessing intoxicating liquor for sale, and she appeals.
    Affirmed.
    Hmphres, Mood & Clayton, of Amarillo, and Eckhardt & Turpin, of Austin, for appellant.
    
      Sam D. Stinson, State’s Atty., of Austin, ■and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The offense is unlawful possession of intoxicating liquor, and the punishment is confinement in the penitentiary for one year.

The evidence is amply sufficient to support the verdict, if the state’s testimony is true. The appellant offered no testimony in her behalf. The state’s ease shows that the prosecuting witness went to the place where appellant was rooming, and advised that he wished to buy some liquor, and, after some discussion with her, she went out- and procured a pint of alcohol, and delivered it to the appellant for a consideration in money. The undisputed proof shows at the time she delivered the alcohol to the appellant she was in company with one Jack Ingman.

Appellant has filed a very able and vigorous brief in which she attacks the court’s charge on principals. It is contended by the appellant that the court erred in his charge submitting the law of principals. If it be conceded that her criticism is justified, it would by no means follow in this case that this constitutes reversible error. If appellant possessed the alcohol for the purpose of sale, there is no question but that she was actually present and in actual physical possession of it at the time. In fact, she is the identical party whom the proof shows made the sale,-and therefore necessarily possessed the liquor for the purpose of sale. Just how under these facts a supposedly erroneous charge submitting the theory that she could be guilty as a principal if her companion Ingman was in possession of the liquor, she being present, and knowing his unlawful intent, and aiding him in the possession, could have in any manner prejudiced her rights is not apparent to us. We would not be authorized to reverse the case on this ground. Article 743, Vernon’s O. G. P.; Robinson v. State, 39 S. W. 107, 37 Tex. Cr. R. 195.

Appellant also contends that, because the prosecuting witness ■ told the appellant, when he sought to buy the liquor that he was not feeling well, therefore the court should have submitted a charge on the theory that, if she possessed the liquor for medicinal purposes, she should be acquitted. Her counsel very vigorously contend that it was the duty of the court to submit this as an affirmative defense. There is no question but that it is and has always been the rule in this state that, if the evidence presents an affirmative defense, it is the duty of the trial court to present this affirmative defense in an affirmative charge. Bohannon v. State, 273 S. W. 262, 100 Tex. Or. R. 285. See notes under paragraph 1, article 735, Vernon’s 0. O. P. The rule has been also well stated by Chief Justice Roberts in Bishop v. State, 43 Tex. 390, as follows:

■ “When the evidence tends sufficiently to the establishment of a defense or mitigation of the offense charged as to reasonably require a charge as applicable, is a question of sound judgment, to be exercised by the district judge, in the first instance, and afterwards by the court, on appeal.
“If its force is deemed to be very weak, trivial, light, and its application remote, the court is not required to give a charge upon it.” Elam v. State, 16 Tex. App. 39.

We think it clear under the facts in this case that, if the evidence raised the issue at all, that the appellant possessed the liquor in question for medicinal purposes, it is so weak, trivial, light, and its application so remote, as to not render it reasonably probable that the jury would, if the law applicable thereto had been charged, have been influenced thereby. As above stated, the only suggestion in this record touching this matter is the statement of the prosecuting witness to the effect that he told the appellant that he was feeling bad and needed a stimulant. There is no suggestion that there is any such relation between appellant and the prosecuting witness as to justify the belief that on this mere suggestion she got up and left her home, went out, and procured a pint of alcohol, and sold it to him for the sum of $5, after refusing to take '$4.50 therefor, simply because she thought this act on her part might be conducive to the restoration of the health of the prosecuting witness.

Finding no error in the record, the judgment is affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

LATTIMORE, J.

In a forcible motion and argument appellant urges that the refusal of the special charges to the effect that, if she was agent of the purchaser and not of the seller, she could not be convicted herein, was error. Appellant was convicted for possessing intoxicating liquor for the purpose of sale. The prosecuting witness testified positively that he bought such liquor from her. No person, known or unknown, save appellant and -her codefendant, Ingman, are referred to in this record in connection with the sale or possession of said liquor. That appellant had the liquor, and that she delivered same to McCormick, the alleged purchaser, and that he paid her |5 for it, are without dispute in the record.

The cases cited by appellant are those in which conviction was had for selling intoxicating liquor. In this case she did not testify, nor did Ingman, nor any one else for the defense. The fact that she went away from her house to some other place and got the liquor, telling -McCormick to meet her at a named place, in nowise combats tbe proposition that she possessed intoxicating liquor for sale. When she came to the place named with the bottle of liquor, she had an argument with McCormick as to the price, but made no suggestion that she was acting for McCormick, or had- bought it from any one else, or that she had paid $5 or any other price for it. Referring to the $4.50 offered her by McCormick for the liquor, he testified that she said;

“No, I can’t take it, I have to have $5.

McCormick swore:

“I bought that whisky from this girl, whatever her name is, one of the defendants over there.”

We think the evidence does not sufficiently raise the issue of agency to make refusal of a special charge on that issue erroneous.

Being unable to agree with any of the contentions made by appellant, her motion for rehearing will be overruled. 
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