
    DICKSON v. STATE.
    (Court of Criminal Appeals of Texas.
    April 17, 1912.)
    1. Criminal Law (§ 1086) — Appeal—Necessity oe Presentation in Record.
    Grounds of motion for a new trial based on bills of exceptions not appearing in the record cannot be considered on appeal.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2736-2769, 2772, 2794; Dec. Dig. § 1086.]
    2. Criminal Law (§§ 419, 420) — Intoxicating Liquors (§ 230*) — Evidence—Admissibility — Hearsay.
    On a trial for selling intoxicating liquors in prohibition territory, after J. had testified that he purchased liquor from accused, accused, to show that the liquor was ordered by J., and not by defendant, gave evidence to show a shipment of liquor by express to J. The brother of accused had testified that he and accused were partners in the whisky ordering business, and that liquor which he ordered was divided with accused. The state, by cross-examination of the brother and by recalling J., sought to prove that the shipment to J. was really ordered by the brother, though in J.’s name, to which accused objected as hearsay and prejudicial, irrelevant, and not in support of the issues. Held, that the objection was properly overruled.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. §§ 419, 420; Intoxicating Liquors, Dec. Dig. § 230.]
    3. Criminal Law (§ 1091) — Bills of Exceptions — Conclusiveness.
    When an appellant accepts and files a bill of exceptions as qualified by the trial judge, he is bound by the qualification.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815; Dec. Dig. § 1091.]
    4. Witnesses (§ 395) — Right to Corroborate Impeached Witness.
    On a trial for unlawfully selling intoxicating liquors, where the defense endeavored to impeach a witness who had testified to purchases from accused by showing statements of the witness that he did not buy the liquor from accused, but merely requested accused to order it, evidence by the state in rebuttal to show statements out of court by the witness similar to his testimony was competent.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. § 1260; Dec. Dig. § 395.]
    5. Witnesses (§ 394) — Evidence to Sustain Character of Impeaching Witness.
    Where a witness’ credibility has been impeached by cross-examination and proof of contradictory statements, proof of the witness’ reputation for truth and veracity is proper in rebuttal.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1258, 1259; Dec. Dig. § 394.]
    6. Witnesses (§ 361) — Reputation—Competency of Witness.
    A person who has lived for a great many years in the same community as a witness, and has never heard any one talk about the witness’ reputation, is competent to prove his good reputation for truth and veracity.
    [Ed.. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 1167-1175; Dec. Dig. § 361.]
    7. Criminal Law (§ 683) — Reception of Evidence — Order—Discretion.
    Under White’s Ann. Code Or. Proc. art. 698, providing that the court shall allow testimony to be introduced at any time before argument of a case is concluded, if necessary to the due administration of justice, where a person charged with unlawfully selling intoxicating liquors has testified that he never sold intoxicating liquors to any one, it is within the discretion of the trial court to permit evidence in rebuttal of sales not shown by the state's direct evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1615-1617; Dec. Dig. § 683.]
    8. Witnesses (§ 337) — Impeaching Character-Particular Facts.
    On a trial for unlawfully selling intoxicating liquors, evidence of a prior sale at a time when such a sale constituted merely a misdemeanor is not admissible to impeach accused’s character, since such an offense did not involve moral turpitude.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 1113, 1129-1132, 1140-1142, 1146-1148; Dec. Dig. § 337.]
    9. Criminal Law (§ 372) — Similar Transactions — Competency.
    On a trial of a person accused not of making a single sale of intoxicating liquors, but of pursuing the business or occupation of selling intoxicating liquors, evidence of a sale about three years before the trial is competent as showing the character of the business in which he was engaged where there was evidence tending to show that such business had been continuous from that time.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 833, 834; Dee. Dig. § 372.]
    10. Criminal Law (§§ 807, 763, 764, 800)— Instructions — “Business” or “Occupation” — Argumentative Instructions — Weight of Evidence.
    On a trial for pursuing the business of selling intoxicating liquors, a charge that the state was not required to show that such “business” or “occupation” was accused’s principal “business” or “occupation,” or that he gave the whole or the greater part of his time to such business, but that if, although engaged in his usual occupation, he secretly sold intoxicating liquors when the opportunity presented, he would be guilty of such offense, was not objectionable on the grounds that it did not prop-. erly define “business” or “occupation,” and was argumentative and restrictive and on the weight of evidence.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1805, 1959, 1960; Dec. Dig. §| 807, 763, 764, 800.
    
    Eor other definitions, see Words and Phrases, vol. 1, pp. 915-926; vol. 8, pp. 7593-7594; vol. 6, pp. 4906-4908; vol. 8, p. 7736.]
    11. Intoxicating Liquors (§ 239) — Criminal Law (§§ 763, 764*) — Criminal Prosecutions — Instructions.
    On a trial for pursuing the business of selling intoxicating liquors, a charge that if the jury believed that accused unlawfully engaged in, and pursued, the occupation or business of selling intoxicating liquors, as alleged in the indictment, and at or about the date mentioned in the indictment made at least two different sales of intoxicating liquors to the parties named in the indictment, they should find the defendant guilty, is proper, not authorizing a conviction for two sales unless accused was also engaged in the business of selling, and not being a charge on the weight of evidence.
    [Ed. Note. — Nor other cases, see Intoxicating Liquors, Cent. Dig. §§ 331-347; Dec. Dig. § 239; Criminal Law, Cent. Dig. §§ 1731-1748; Dec. Dig. §§ 763, 764.]
    12. Intoxicating Liqttobs (§ 239) — Criminal Prosecutions — Instructions.
    On a trial for pursuing the business of selling intoxicating liquors, where accused claimed that he merely ordered the liquor for others, a charge that if he ordered the liquor for the accommodation and as the agent of the purchasers, and not as the seller’s agent, such transactions would not be sales, was proper in connection with the further charge that the jury must find beyond a reasonable doubt that accused was pursuing such business, and had made at least two sales.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 331-347; Dee. Dig. § 239.]
    13. Criminal Law (§ 1064) — Motions for New Trial — Grounds.
    A motion for a new trial on the ground that the court erred in refusing accused’s special charge No. 1 is too general, and its denial will not be reviewed on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2676-2684; Dec. Dig. § 1064.]
    14. Intoxicating Liquors (§§ 141, 239)— Criminal Prosecution — ‘ ‘Business’ ’ — “Occupation” — ' ‘Sale. ’ ’
    An instruction that it was not necessary that a party should make a profit in his business in order to be guilty of pursuing the occupation of selling intoxicating liquors was not an improper limitation on the meaning of the words, “occupation” or “business,” as used in the statute, and was proper where the evidence showed that accused would order whisky for his store customers, and charge it in their store account at cost to be paid when the rest of the account was paid, since each of these transactions constituted a sale.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 151, 331-347; Dec. Dig. §§ 141, 239.*
    For other definitions, see Words and Phrases, vol. 7, pp. 6291-6306; vol. 8, p. 7793.]
    Davidson, P. J., dissenting.
    Appeal from District Court, Hopkins County; B. L. Porter, Judge.
    Bill Dickson was convicted of crime, and he appeals.
    Affirmed.
    C. E. Sheppard and D. Thornton, of Sul-phur Springs, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HABPEB, J.

In this case the appellant was prosecuted for pursuing the business and occupation of selling intoxicating liquors in a county where the sale had been prohibited by law, and, when tried, was convicted and sentenced to the penitentiary for two years.

Appellant by bills of exceptions and in the motion for new trial raises many of the questions decided by this court in the case of Fitch v. State, 58 Tex. Cr. R. 366, 127 S. W. 1040, when the court was composed of Judges Davidson, Bamsey and McCord. The constitutionality of the act, and whether or not it, by its terms, applied to- territory where prohibition had theretofore been adopted, is so thoroughly and ably discussed we do not deem it necessary nor proper to again enter into a discussion of these questions, but simply state we adhere to the opinion of the majority of the court in that case. The court since the rendition of the opinion in the Fitch Case has frequently passed on the same questions. Clark v. State, 136 S. W. 260; Dozier v. State, 137 S. W. 679; Slack v. State, 136 S. W. 1073, and other cases referred to in those opinions. The court did not err in overruling the motion to quash the indictment, nor the plea to the jurisdiction of the district court of Hopkins county.

Bills of exceptions Nos. 3, 4, and 5 are not in the record. Therefore we cannot consider nor pass on the grounds in the motion for new trial based thereon.

In the next bill of exceptions appellant complains that when S. L. Dickson, a witness for the defendant, was placed on the stand, on cross-examination the state was permitted to prove by him: “That he is the brother of the defendant, and lived at Brashear, in Hopkins county, during the last year; that he drinks considerable whisky, on an average of about six quarts a month, which costs him about $4 per gallon ; that he thinks he went to a fellow by the name of John Jacobs in May of this year, and told him that he wanted to order some whisky in his name; that he had ordered so much in his own name that he was ashamed to order any more in his name, and wanted to order in Jacobs’ name; that he thinks he did make an order about that time in the name of John Jacobs & Co. of nine quarts, and that it came to Brashear, and that he, witness, got it out of the express office, but does not remember what he did with it; that defendant had no interest in this order; that about a week ago, about a week before the trial, he ordered some whisky in the name of S. L. Dickson & Co.; that a friend of his at Brashear was interested with him in the order, but that the defendant had no interest in it; that defendant was not present when he was talking with Jacobs about using his name in making the order, and was not present when the liquor was received.” The objections urged were that such testimony was hearsay and prejudicial to the rights of the defendant, immaterial, irrelevant, and not in support of any issue in the case. The court in approving the bill says: “The testimony of this witness in regard to ordering nine quarts of whisky in the name of John Jacobs was admitted for the following reason: Jacobs was a state’s witness, and had testified to purchasing liquors several times during the year 1911 from the defendant. Defendant’s theory was that Jacobs did not buy from the defendant, but that he had ordered tlie liquor himself. He introduced the express agent and showed by his books that one shipment of nine quarts of liquor had been received by the witness or in the name of the witness Jacobs. Jacobs testified to the shipment, but claimed that S. L. Dickson, brother of defendant, ordered the same in his, witness’, name. This evidence of this witness S. L. Dickson was admitted in order to explain said shipment, and to show that it was not in fact the liquor of the witness Jacobs. As to the second ground of complaint in this bill, the following are the facts: This witness, S. D. Dickson, was a brother of the defendant. He was introduced by the defendant. On cross-examination by the state he admitted that he had ordered a great deal of liquor in the name of S. L. Dickson & Oo.; that in all such orders his brother, the defendant, was the company. This witness admitted that he and his brother were partners in the whisky ordering business. This testimony was admitted for the purpose of showing the amount of liquor ordered and received by the defendant. After admitting that he and defendant were partners, the district attorney asked the defendant if they divided their whisky when it came, and what they did with it. He answered that they did, and that he drank his.”

When a defendant accepts a bill as qualified and files it, this court has held that it estops the defendant from further complaint, and he is bound by the qualification. Blain v. State, 34 Tex. Cr. R. 448, 31 S. W. 368; Hardy v. State, 31 Tex. Cr. R. 289, 20 S. W. 561; Devine v. State, 35 Tex. Cr. R. 647, 34 S. W. 969; Brown v. State, 32 Tex. Cr. R. 119, 22 S. W. 596; Boyett v. State, 2 Tex. App. 93. As qualified by the court, the bill presents no error. The testimony, of John Jacobs on this point was admissible for the, same reasons.

It is also complained that the witness Jno. T. 1-Iyde was permitted to testify to a statement made to him by the state’s witness R. G. Timbs. The court, in approving the bill, states: “The witness Timbs testified on the trial of this case that he bought a quart of liquor from defendant. He denied that he had requested defendant to order him this quart. Mr. Sheppard, one of defendant’s attorneys, testified for defendant that he had a conversation with this witness a few days after the witness had made affidavit against defendant, in which conversation the witness Timbs stated to him that he had not bought this particular quart of liquor from defendant, but that he had requested defendant to order it for him. The witness Timbs denied this conversation. After the witness Sheppard had testified, the witness Hyde was introduced by the state in rebuttal, who testified that Timbs had made the statement to him complained of in the bill, which statements were in substance the same as testified to by the witness Timbs on the trial. My ruling in this case was based upon the rule laid down in the case of Campbell v. State, 138 S. W. 607.” It is a well-established rule of law in this state that, where the opposing party seeks to contradict a witness on a material point by proving contradictory statements, the witness can be supported by showing he made the same statement as that testified to by him on the trial at the time of or shortly after the transaction. In section 874, Branch’s Crirn. Law, the rule is laid down that, where a state’s witness is attempted to be impeached by showing that he made -statements with reference to the transaction out of court different and contradictory to his testimony delivered on the trial, the state is permitted to support the witness by showing that shortly after the transaction he made statements of the matter similar to his evidence delivered on the trial — citing Goode v. State, 32 Tex. Cr. R. 508, 24 S. W. 102; Sentell v. State, 34 Tex. Cr. R. 260, 30 S. W. 226; Hamilton v. State, 36 Tex. Cr. R. 376, 37 S. W. 431; Johnson v. State, 42 Tex. Cr. R. 378, 60 S. W. 48; Lee v. State, 44 Tex. Cr. R. 462, 72 S. W. 195; and a long list of other authorities cited under that section.

It appears by several bills that in rebuttal the state was permitted to prove by a number of witnesses that the reputation of the state’s witnesses Timbs and Jacobs for truth and veracity was good. The court in approving the bill states: “The witnesses were bitterly assailed by the defendant on cross-examination; the line of examination indicating that sadd witnesses had sworn falsely. Defendant also introduced witnesses impeaching both of said witnesses by showing that said witnesses had made statements and had done things in regard to the case which they denied making and doing while testifying.” The defendant accepted this bill as qualified and files it; consequently is bound thereby.. See authorities above cited. If the defendant sought to impeach the witnesses by proving contradictory statements, the evidence was admissible under all of our decisions. The rule is thus laid down: “Either side is entitled to prove general reputation for truth and veracity of witness who has been impeached, or sought to be impeached, by proof of contradictory statements.” Burrell v. State, 18 Tex. 730; Graham v. State, 57 Tex. Cr. R. 109, 123 S. W. 691; Alderson v. State, 53 Tex. Cr. R. 527, 111 S. W. 73S; Brown v. State, 52 Tex. Cr. R. 269, 106 S. W. 368; and authorities cited under section 877, Branch’s Crim. Law.

In some other bills, it is complained that some of the witnesses ought not to have been permitted to testify to their reputation for truth and veracity because the witness answered on cross-examination that he had never heard any one talk about the reputation of the witnesses named. This has been decided adversely to appellant’s contention. Tyler v. State, 46 Tex. Cr. R. 13, 79 S. W. 558; Trammell v. State, 10 Tex. App. 467; Reid v. State, 57 S. W. 663. There is no better evidence of a man’s good reputation than that he has lived in a given community for a number of years, and that it was never brought in question.

The witness Mrs. Cora Watson was permitted to testify: “Last year I lived at Divide with my husband, Dennis Watson. We are divorced now. I know the defendant, and know where his place of business is. Last fall I accompanied my husband to Brashear one day, and we went to defendant’s place of business. My husband purchased a jug of cider. It was so-called cider, but it made him drunk. When he went there, he was perfectly sober. We traded quite a few groceries with defendant that day, and at last my husband told him he wanted a jug of cider. He had been getting cider somewhere. I didn’t know where, but he got the jug of cider there, and he selected it from 25 or 30 other jugs, and he went around the corner and taken up the jug and paid him the money. I don’t know how much. He got the jug over in the corner from the other jugs. He didn’t take up the first one he came to; got it from the southwest corner of the house. It was a glass gallon jug. After that me and my husband went home. I know that he drank this cider, and it made him drunk. That was early last fall 1910.” The defendant objected that it was offered in rebuttal, and was not in rebuttal of anything brought out by him. The court in approving the bill states the defendant while testifying in his own behalf had stated that he had never at any time sold intoxicating liquor to any one, and this purchase was within the period covered by the indictment. It is provided by article 698 of the Code of Criminal Procedure that “the court shall allow testimony to be introduced at any time before argument of a cause is concluded, if it appear that it is necessary to the due administration of justice.” The testimony in this case was introduced before the testimony was closed, and this has always been held to be a matter within the sound discretion of the court trying the case. Dor authorities, see section 766, White’s Ann. Code of Crim. Proc.

The only other bill in the record relates to the testimony of the witness E. Jenkins. It appears that defendant was recalled, and asked if he had sold intoxicating liquors to the witness E. Jenkins, and, when he denied doing so, the witness Jenkins was permitted to testify that he had purchased a quart of whisky from defendant and paid him $1 therefor. The objection to this testimony was that the transaction “antedated the beginning of the application of the law under which the defendant is being prosecuted herein,' and because it is permitting the state to impeach the defendant upon an immaterial matter, and a matter highly prejudicial to him.” The transaction testified to by the witness Jenkins occurred some time prior to the date alleged in the indictment in this case, and we do not think it admissible for the purpose of impeaching defendant. If he sold the witness Jenkins intoxicating liquor at the time named, no prosecution had been begun, and, a single sale of intoxicating liquor in Hopkins county being a misdemeanor only, the transaction would not involve an offense constituting moral turpitude under the decisions of this court. But the insistence in the argument in this case, that it could not be admissible because it would show another and different offense, cannot be sustained. It is true this court has held, and it is the law of this state, where a man is prosecuted for making a single sale of intoxicating liquors, evidence of other sales is not ordinarily admissible, and, if this was a prosecution for making a single • sale of intoxicating liquors, it would have been error to have admitted the testimony, but the defendant was being prosecuted for the offense of pursuing the business or occupation of selling intoxicating liquors, and in this character of ease evidence of other sales is admissible to show the character of business or occupation in which one is engaged. One, two, or three isolated sales might not show that one was engaged in that business, but each and every sale shown would have a tendency, to prove that fact and wotild be admissible in evidence, as would the fact that one kept whisky constantly on hand in his place of business, the amount received by him, and all these circumstances might show that he was engaged in that business. The evidence shows that defendant received by express from June 1,1910, to July 5, 1911, 245 quarts of whisky consigned to defendant Or W. T. Dickson & Co. It also shows that a quantity was received by S. L. Dickson & Co., and defendant’s brother, S. L. Dickson, testified that, when whisky was so consigned, defendant was interested therein. The evidence would further show that, when the whisky' was received consigned to John Jacobs & Co. ordered in that way, it was carried to defendant’s place of business. In a prosecution for pursuing the business of selling intoxicating liquors, all such testimony is admissible as tending to show the character of business in which one is engaged. Walker v. State, 145 S. W. 904, recently decided by this court and cases therein cited. The only serious question as to the testimony of the witness Jenkins is: Was it too remote in time to aid .the jury in passing on the question of whether or not defendant was engaged in the business of selling intoxicating liquor at the time alleged in the indictment? This question is discussed in French v. State, 47 Tex. Cr. R. 572, 85 S. W. 4, and has been frequently before this court, and the rule seems to tie that isolated transactions long prior to the offense charged would not be admissible in evidence, but if the evidence in the particular case would indicate that no change had taken place, but that the same course of business had been continuous from the date of such transaction to the date alleged in the indictment, and the evidence tended to shed light on the transaction, it would not be inadmissible because of remoteness. This case was tried on or about September 29, 1911, and the witness testified that about three years prior to that date he was standing on the gallery of defendant’s store, and remarked to defendant that “he wished he had some snake medicine,” when defendant replied, if he (witness) would keep ' his mouth shut, he would let him have a quart, and defendant went in his store and sold him a bottle of Old Hayner whisky for $1. The indictment in this case covers a period from June 14, 1910. The evidence of defendant would indicate that he had been engaged in the same line of business for three or four years, he saying he ordered whisky from Wogt, Ap-pelgate & Co.; that he had order blanks from them for making orders; that he drank a whole lot, and 'kept it hid in the store; that every order he had made for the last three or four years somebody was interested with him. This and other evidence in the ease would indicate that during that whole period of time he was engaged in the same character of business, and under this evidence we do not think the evidence of the witness Jenkins so remote as to present reversible error.

This disposes of all the bills of exceptions in the record, and the other grounds in the motion complaining of errors in régard to the evidence cannot be considered. There are several complaints of the charge of the court; the first being to the following paragraph: “In order to constitute engaging in or pursuing the occupation or business of selling intoxicating liquors, it is necessary for the state to prove beyond a reasonable doubt that the defendant, Bill Dickson, unlawfully engaged in and followed the occupation and business of selling intoxicating liquors in Hopkins county, Tex., at any time between the month of June, 1910, and the 22d day of July, 1911, and that the defendant unlawfully made at least two different sales of intoxicating liquor between said dates in Hopkins county, Tex., to the parties named in the indictment; but it is not re; quired that the state should show that said business or occupation was the defendant’s principal business or occupation, or that he gave the whole or the greater part of his time to said business. A person may engage in his usual occupation or avocation, and yet secretly and covertly sell intoxicating liquors whenever the opportunity presented itself,'and would be guilty, under the law governing this case, of engaging in or pursuing the occupation or business of selling intoxicating liquors”—the objections urged being that it is not a proper definition of “occupation” or “business,” that it is argumentative and too restrictive, and is upon the weight of the evidence. This charge is in accordance with the holding of this court in the ease of Fitch v. State, 58 Tex. Cr. R. 866, 127 S. W. 1046, and Clark v. State, 136 S. W. 263, and we do not deem it necessary to again discuss the objections named.

Again, appellant complains of the following paragraph of the court’s charge: “If, therefore, you believe from the evidence beyond a reasonable doubt that between the month of June, 1910, and the 22d day of July, 1911, the sale of intoxicating liquors was prohibited in Hopkins county, Tex., under the laws of this state, and that the defendant, Bill Dickson, did at any time between said dates in I-Iopkins county, Tex., unlawfully engage in and pursue the occupation and business of selling intoxicating liquors, as alleged in the indictment, and if you believe that the defendant unlawfully in said county and state between said dates and at or about the dates alleged in the indictment did make as many as at least two different sales of intoxicating liquors to the parties named in the indictment, then you will find the defendant guilty as charged; but, unless you so believe, you will acquit him.” This charge is also in conformity to the rule announced in the Fitch and Clark Cases, supra. It did not authorize the jury to convict defendant if he made only two sales, but instructs them they must find beyond a reasonable doubt that he pursued the occupation' or business, and, in addition to that fact, made at least two sales. This is in conformity with the statute. Ordinarily to convict one of pursuing a given occupation it is not necessary to prove that a single sale was made, but only that one was holding himself out and offering to make sales; but this statute has placed upon the state the additional burden of proving at least two sales after proving that one is engaged in the occupation or business before a convic-' tion would be authorized. What is termed “supplemental charge” is not upon the weight of the testimony.

The defendant had testified that he was engaged in ordering whisky frequently for others, and had ordered whisky for the state’s witnesses Timbs and Jacobs. The court instructed the jury: “If you believe that the defendant ordered for accommodation the whisky for the witnesses Timbs and Jacobs that is charged by the state to have been sold by the defendant to them, and that in ordering said whisky, if he did, he was acting as the agent of the purchasers, and not as the agent of the seller, then you are charged that such transaction would not constitute a sale by the defendant. You are further charged that if the defendant made other orders of intoxicating liquors for other persons, and in making said orders, if he did, he was acting for accommodation and as the agent of the purchasers, and not the seller, then such transactions, if any, would not constitute sales.” This was hut presenting the theory of defendant, and under his evidence was an issue proper to be submitted to the jury. The court had instructed the jury that they must find beyond a reasonable doubt that defendant was pursuing the occupation or business, and had made at least two sales to those witnesses, and the charge, under these circumstances, would present no error. Davis v. State, 45 Tex. Cr. R. 166, 74 S. W. 919.

The grounds in the motion, reading as follows, cannot be considered, as they are too general and point out no error: “Because the court erred in refusing defendant’s special charge No. 1.” It has been held by this court that the motion for new trial must point out the error, if error there be, and call the trial court’s attention to it specifically, otherwise this court will not review the question on appeal. Ryan v. State, 142 S. W. 878, and Berg v. State, 142 S. W. 884, and authorities therein cited.

The only other ground in the motion presented in a way we can consider it complains of the following charge: “You are instructed that it is not necessary under the law that a party should make a profit in his business in order to be guilty of engaging in or pursuing the occupation of selling intoxicating liquors.” Appellant complains that “it was error to give this charge because it became an improper limitation upon the correct definition of ‘occupation’ and ‘business’ as those terms are used in this statute, and was, for that reason, prejudicial to the rights of the defendant.” This would not be a limitation on the definition of “occupation” and “business.” Defendant in his testimony said, when testifying about ordering whisky for others: “When these parties would order whisky with me, they would always pay me the cash, or some of them would run an account with me, and, when they were good and paid up their accounts all right, I would just charge theirs to them as cash and enter it that way on the books, put it right in their accounts. I always charged them exactly what it cost.” Under this testimony, it was proper to give the above charge, for, under the decisions of this court, every time he ordered whisky for one of his customers and charged it to their account at the store, to be paid for when the remainder of the account was paid, each of such transactions would constitute a sale. For a full review of the decisions, see Coleman v. State, 53 Tex. Cr. R. 578, 111 S. W. 1011, and Branch’s Crim. Daw, § 565. Not only would each of such transactions constitute a sale, but it would be a strong circumstance to show that defendant was engaged in the business of selling intoxicating liquors.

The judgment is affirmed.

DAVIDSON, P. J. I have written so often in dissent I deem it unnecessary to write further.  