
    GENTRY v. STATE.
    (No. 7920.)
    (Court of Criminal Appeals of Texas.
    Jan. 23, 1924.)
    1. Intoxicating liquors &wkey;>236(4) — Evidence held not to sustain state’s burden of showing that defendant sold liquor as seller or seller’s agent.
    In a prosecution for illegally selling intoxi-catii. ▼ liquors, evid'ence tending to show a sale wherein defendant was the agent of the buyer held not to discharge the state’s burden of showing defendant’s participation therein as seller or the seller’s agent, or as acting with the seller.
    2. Criminal law <&wkey;784( I) — Refusal to charge on circumstantial evidence in prosecution for illegal selling held error.
    In a prosecution for.'illegally selling intoxicating liquors, where the evidence tended to show that defendant was merely the buyer’s agent in purchasing the liquor, held error to refuse to charge on circumstantial evidence.
    
      Appeal from District Court, HopMns County; Geo. B. Hall, Judge.
    Tom Gentry was convicted of selling whis-ky, and he appeals.
    Reversed and remanded.
    Connor & Ramey and Dial, Melson, Davidson & Brim, all of Sulphur Springs, for appellant.
    Tom Garrard, State’s Atty., of Midland, and Grover C. Morris, Asst. State’s Atty., of Devine, for the State.
   HAWKINS, J.

The conviction is for sale of whisky. Punishment, one year in the penitentiary.

Timely exception was taken to the charge of the court because it contained no instruction on circumstantial evidence, and a special charge upon that issue was requested and refused. The sale was alleged to have been made by ¿ppellant to one Angier, who was manager of. a natatorium run in connection with a park near Sulphur Springs. Angier’s evidence, in substance, was that he saw appellant at the natatorium on the day of the alleged sale, and, smelling whisky on his breath, asked, if he could get witness some; that appellant seemed to be offended at the question, and witness explained that he was suffering by reason of having a tooth extracted the day before; that after this explanation appellant told witness he thought he could get him some; that witness gave him a check for $5, and pointed out a small window in the office, and told appellant if he got the whisky to put it in this window, or if any one else brought it that appellant should tell them to put it there; that witness went to town, and in about two hours returned and found the whisky where he had directed it to be left. Witness was unable to remember whether he made the cheek payable to appellant or to “cash.” Up to the point of delivery of the check to appellant and his promise to try and secure the whis>-ky for Angier the evidence is direct, but no sale of whisky had been consummated yet. This direct evidence also raised the issue of agency on appellant’s part in acting for the buyer. No witness saw the whisky placed in the window, the designated point of delivery, and no sale was completed until this delivery was made. The state relied upon proof of the fact that the whisky was found by Angier where he had told appellant to leave it, or have it left, as a circumstance from which the inference could be drawn that appellant placed it there, thus completing the sale, but after all it was only a circumstance. The evidence having raised the issue of agency for the buyer before the state was entitled to a conviction, it was bound to show to the satisfaction of the jury beyond a reasonable doubt that appellant either delivered the whisky in person at the designated point, or had it delivered there by his direction, while acting in the capacity of a seller of the liquor, and not as agent for' the buyer. This burden the state undertook to discharge by the facts already in evidence and by proof of other circumstances from which guilt as a seller might be inferred. By a merchant in the city the state proved that he cashed the check for appellant, it being payable to “cash,” and that appellant told him the check was in payment for a pig he had sold to Angier.

Appellant says that prior to the transaction with Angier he met one Jim Hogan; that Hogan told him if he wanted a drink to come to the park; that on this invitation he went in company with one Carter to the park where Hogan had a covered wagon; that he gave appellant and Carter a drink of whisky, after which he and Carter went to the cold drink stand at the natatorium and each drank a coca-cola. His evidence does not vary from that of Angier as to their conversation about the whisky, his reception of the check and promise to try and get some whisky for Angier, and the latter’s direction as to where it should be delivered. He further testified that after Angier went to town he (appellant) left Carter at the nat-atorium and went back to the wagon and bought from- Hogan for Angier the whisky in question, and told Hogan to place it in the window where Angier had directed it to be delivered; that Hogan would not accept the cheek in payment, and that he (appellant) paid the money to Hogan, and later cashed' the check to reimburse himself; that he did not deliver the whisky, and had no further connection with it, and did not see Hogan place it in the window; that after paying Hogan and telling him where to put the whisky appellant rejoined Carter, and they returned to the city together. He admits telling the merchant who cashed the check that it was in payment for a pig, but says his reason for so stating was that he did not want to tell the party that Angier had been buying whisky. The witness Carter supports appellant in some particulars. He says the man in the wagon gave him and appellant a drink; that afterwards he saw appellant and Angier in conversation, but did not hear it; that after Angier left for town appellant again went to the wagon; that when he came back he brought no package with him, and placed no package or bundle in any window at the office, but rejoined witness and they returned to town.

It will be seen that appellant makes out a clear case of agency for the buyer, which had also been suggested by the state’s own witness. That some one made a sale of whisky during the transaction is not left in doubt; but the state was required to show appellant’s participation therein as the seller, or the seller’s agent, or as acting with the seller. If it has done this it was not by direct evidence, but by proof of facts and circumstances from which guilt could be inferred, and all the facts and circumstances, taken together as proved, must not only be consistent with the inference of appellant’s guilt, but must at the same time be inconsistent with the hypothesis that he is innocent.

From our analysis of the evidence we have, reached the conclusion that the learned trial judge fell into error in declining to charge upon circumstantial evidence, for which the judgment must be reversed, and the cause remanded. 
      
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