
    ELY v. STATE.
    (Court of Criminal Appeals of Texas.
    June 25, 1913.)
    Criminal Law (§§ 770, 784*) — Evidence—Instructions.
    Where there was no positive testimony of a sale of liquor in violation of the prohibition law, and there was positive testimony of a gift, and the state sought to overcome it by circumstantial evidence, the court must, on the request of the accused, submit the issues of sale or gift, and charge on circumstantial evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1806, 1883-1888, 1922, 1960; Dee. Dig. §§ 770, 784.*]
    Appeal from District Court, Freestone County; H. B. Daviss, Judge.
    W. S. Ely was convicted of violating the prohibition law, and he appeals.
    Reversed and remanded.
    C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

From a conviction for violating the prohibition law, appellant prosecutes an appeal to this court.

The first ground in the motion for new trial complains of the insufficiency of the testimony to sustain the conviction. We have read the testimony carefully, and think the facts would sustain the verdict. That Jim Thurman obtained a pint of whisky from W. S. Ely, appellant, is shown by the testimony of all the witnesses, both for the state and appellant; but Jim Thurman, the alleged purchaser, and appellant, both testify that it was a gift from appellant to him. So the only contested issue in the case is: Was it a sale or gift of the whisky? No witness testifies that they saw appellant deliver the whisky to Thurman, nor Thurman pay appellant any money or promise to pay him any; but the sheriff and constable testify to facts and circumstances which would authorize the finding that there was a delivery of the whisky, and circumstances which would authorize the jury to find that there was a sale. But this depends entirely upon circumstantial evidence, and must be deduced from the circumstances. Appellant admits delivery of the whisky to Thurman, but says it was a gift. As there is no, positive testimony of a sale, but there is positive testimony as to a gift, and the state sought to overcome this by circumstantial evidence, we think the court should have so instructed the jury upon the request of appellant.

The judgment is reversed, and the cause remanded.  