
    ARCHBELL v. STATE.
    (No. 8157.)
    (Court of Criminal Appeals of Texas.
    April 2, 1924.
    Rehearing Denied April 30, 1924.)
    1. Criminal law <&wkey;826, 1086(14) — Requested instructions must be presented before reading of main charge.
    ■ Under Yernon’s Ann. Code Cr. Proe. 1916, arts. 735, 737a, and 743, requested instructions must be presented to court before main charge is read to jury, and where record does not show that they were so presented they cannot be considered.
    2. Intoxicating liquors &wkey;s236(ll) — Evidence held not to show sale for medicinal purpose.
    In a prosecution for the unlawful sale of whisky, evidence that the purchaser had represented to defendant that he had been drunk, was sick, and in need of a stimulant, held not to show a sale for medicinal purposes, within the statutory and constitutional exception.
    On Motion for Rehearing.
    3. Intoxicating liquors &wkey;>239(2) — Requested instructions as to defendant’s liability for a sale for medicinal purposes, induced by representations of the purchaser that he was sick, held properly denied.
    Requested instructions, in prosecution for unlawful sale of whisky, that if purchaser had falsely represented that he was sick, and thereby induced defendant to sell or give the whisky for medicinal purposes, he should be acquitted, helé properly denied as unwarranted by evidence, wherein defendant both denied the sale and admitted receipt of money from purchasers with which to replace the whisky.
    —.Fnr other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Harrison County; P. O. Beard, Judge.
    - Claud Archbell was convicted of unlawfully selling intoxicating liquor, and he appeals.
    'Affirmed.
    H. T. Lyttleton and John Jasper, both of Marshall, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

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

Collins, the purchaser named in the indictment, testified that he went to the home of the appellant and bought a pint oí whisky, for which he paid him $2; that the appellant went out the back- door of his house and to a bridge; that he took some whisky out from under the bridge and handed it to Collins, who paid him 'thei*efor. Other witnesses who were near by corroborated the testimony of Collins.

Appellant testified that he was sick; that he kept whisky on hand as medicine; that the doctor had prescribed it; that, according to the representation of Collins, he had been on the drunk, was sick, and needed a drink of whisky. Appellant yielded to the impor-tunities of Collins and agreed to let him have a pint of whisky and received from him $1.-50, the understanding being that appellant would use the $1.50 to replace the whisky for his own use.

Appellant prepared a special charge suggesting that the court inform the jury that if the appellant let Collins have the whisky upon the belief from Collins’ statement that he was sick, there should be an acquittal ; also, a special charge to the effect that the law did not look with favor upon the conduct of the officers in encouraging the commission of the crime, and that if Collins was so engaged and misrepresented himself to be sick and needed whisky for medicine, and that under these circumstances it was furnished him, there should be an acquittal. Neither in the charges nor in the bill complaining of their refusal is it made to appear that they were presented to the trial court before the main charge was read to the jury. This is required by the Code of Criminal Procedure. See articles 735, 737a, 743, Vernon’s Ann. Code Cr. Proc. 1916; also, Jones v. State, 74 Tex. Cr. R. 205, 167 S. W. 1110; Lopez v. State, 73 Tex. Cr. R. 624, 166 S. W. 154; Bedford v. State, 75 Tex. Cr. R. 309, 170 S. W. 727; Vernon’s Tex. Crim. Stat. vol. 2, p. 525, note 63; page 526, note 64; Alsup v. State, 85 Tex. Cr. R. 36, 210 S. W. 195; Lee v. State, 83 Tex. Cr. R. 532, 204 S. W. 110; Payne v. State, 84 Tex. Cr. R. 2, 204 S. W. 765; Green v. State, 84 Tex. Cr. R. 162, 205 S. W. 988.

Appellant filed an exception to the court’s charge upon the ground that it failed to embrace in its charge an instruction to ,the effect that if the appellant merely consented to let Collins have a pint of whisky because the appellant was told by Collins that he had been ■drinking, was sick, and in need of a stimulant, an acquittal should result. It is true that in both the Constitution and in the statute there'is an exception in favor of the “sale of intoxicating liquors for medicinal purposes,’’ and in a case where that issue is pertinently raised by the evidence, it is incumbent upon the court to submit it to the jury. The evidence in the present case, however, to the effect that the witness Collins had been drunk and was sick because of the need of a stimulant,, is not deemed such a state of facts as would justify the sale under the exception mentioned. Tfhe purpose for which, according to the appellant, Collins wanted the whisky, would be more properly denominated for “beverage purpose” than for “medicinal purpose.”

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

On Motion for Rehearing.

HAWKINS, J.

Appellant requested two special charges' which were refused. Upon original submission we declined to consider the error assigned upon this action of the court because neither from the charges themselves nor from the .bills of exception did it appear that they were presented to the court before the main charge was read to the jury. Upon motion for rehearing our attention is called to the fact that included in the exceptions to the court’s charge also appears an exception to the refusal of the special charges mentioned, and a recital that they were presented before the main charge was read, which exception and recitation is approved by the trial judge. The special charges will now be considered.

Appellant requested that the jury be told that if he let prosecuting witness have the liquor because appellant believed'from a statement made to appellant by said witness that he was sick, and that appellant did not sell the liquor, then they would find him not guilty. We find "in the evidence no basis for this instruction. While appellant asserts more than once in his testimony that he did not sell the liquor in question, yet his recitation of the facts shows beyond question that even from his standpoint prosecuting witness said he .had been on a drunk two or three days; that he was sick and wanted a drink; that he gave appellant $2, and appellant told him the whisky had only cost $1.50, and that he gave 50 cents of the money back,, as he did not want to make any profit on it, but that he kept the $1.50 to get other whisky to replace that which he let prosecuting witness have. Under all the authorities; the evidence of appellant himself makes out a ¡sale and not a gift, and the learned trial judge properly refused the requested instruction.

The other special charge seems to proceed upon the theory that if the prosecuting witness misrepresented to appellant that he was sick, and thereby induced appellant to let him have the whisky, he would be entitled to an acquittal, regardless of whether the transfer was a sale or gift. We have already condensed the evidence upon this point and think the court properly declined to give it as not supported by the evidence and as not containing a correct proposition of law.

The motion for rehearing will be 'overruled.  