
    FULTON v. STATE.
    (No. 7901.)
    (Court of Criminal Appeals of Texas.
    Jan. 23, 1924.)
    Criminal law &wkey;>784(l) — Refusal to instruct on 'circumstantial evidence held error.
    Where, in a prosecution for unlawfully selling intoxicating liquor, the state: relied upon circumstances alone to identify accused as the one who sold the liquor, refusal to instruct upon law of circumstantial evidence held error.
    Appeal from District Court, Lubbock County; Clark M. Mullican, Judge.
    A. M. Fulton was convicted of unlawfully selling intoxicating • liquor, and he appeals.
    Reversed and remanded.
    D. W. Puckett and Vickers & Campbell, all of Lubbock, for appellant.
    Tom Garrard, State’s Atty., of Midland, and Grover C. Morris, Asst. State’s Atty., of Devine, for the State.
   MORROW, P. J.

The offense is the unlawful sale of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of two years.

Jons testified that he purchased a pint of whisky from a man whom he did not know. He was unable to describe the man or his 'apparel, save that he was taller than the appellant. The transaction took place on the street at night. Before the purchase, Jons had a conversation with one Ater while on the street. Ater went down the street and returned, after which the purchaser went to a point on the street near a barber shop and met a man who, in reply to Jons’ inquiry, indicated that he would obtain some whisky. They walked together to a point on the street near a garage, where Jons received the whisky and paid for it. Witnesses testified that they saw Ater and Jons together on the street; also that Ater and the appellant were together, and that Jons walked to the barber shop.

The court was requested to instruct the jury on the law of circumstantial evidence, and we think error was committed because of his failure to do so. The state’s evidence is direct that somebody sold Jons some whisky, but to identify the appellant the state relied upon circumstances alone. The inference may have been deducible from the evidence that the sale was made by the appellant, but the nature of the evidence is such that it did not warrant the court in refusing to instruct the jury upon the law of circumstantial evidence.

The judgment is reversed, and the cause, remanded.  