
    HOWINGTON v. STATE.
    (No. 8601.)
    (Court of Criminal Appeals of Texas.
    Feb. 11, 1925.)
    1. Intoxicating liquors <8=3146(3) — Agent for purchaser of liquor not guilty of sale.
    Agent for purchaser of liquor, who is in no way interested with seller, is not guilty of sale of it.
    2. Criminal law <®=>772(6) — Refusal to charge on theory that accused was agent of purchaser held error.
    In prosecution for sale of liquor, defense being that accused merely procured it for and at request of prosecuting witness, refusal to charge that such act would not constitute sale held error, though charge requested did not in so many words mention issue of “agency.”
    Appeal from Criminal District Court, Nue-ces County; A. W. Cunningham, Judge.
    Joe Howington was convicted of selling intoxicating liquor, and he appeals.
    Reversed and remanded.
    B. D. Tarlton, of Corpus Christi, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for the sale of intoxicating liquor to one C. D. Berry. Punishment is one year in the penitentiary.

Berry testified that he approached appellant and told him he had been suffering with the “flu,” and ashed if appellant could get-witness some whisky; that appellant said he did not know, but would try; that witness gave him $3; that he did not receive any liquor from appellant, and had no further conversation with him in regard to the matter, but that he found in his ice box when he went home that night a quart. of whisky. He did not know who put it there. Appellant testified that, when Berry approached him with a request to get some whisky, appellant told him he did not know whether he could do it or not, but would try; that he took the $3 which appellant handed him, found a Mexican who said he had been selling Mr. Berry whisky before, and knew where to put it; that appellant turned the $3 over to the Mexican. Appellant claims that he had no further knowledge of the matter whatever; that he never saw the whisky, and did not know in fact whether any was delivered to Mr. Berry or was placed in his ice chest.

It will be seen that the issue whether appellant acted as the agent for the alleged purchaser was pointedly raised by the evidence. If appellant was in no way interested with the seller, but was acting only as Berry’s agent in buying the liquor, he would not be guilty of making a sale of it. See cases collated under section 1248, Branch’s Ann. P. C.; also Dunson v. State (Tex. Cr. App.) 266 S. W. 1102. There was an entire omission from the charge of any instruction whatever upon this issue. The charge was not excepted to for such omission, but appellant requested a special charge upon the subject, to the refusal of which exception was reserved. See Boaz v. State, 89 Tex. Cr. R. 515, 231 S. W. 790; Parker v. State (No. 7255) 261 S. W. 782, opinion on rehearing April 30, 1924.

The substance of the requested instruction is that, if the jury should find from the evidence that Berry gave appellant money with which to procure some whisky for the former, and that appellant did get such whisky for him, or had some one else to get it for Berry, then such act on the part of appellant would not constitute a sale in contemplation of law. While this charge did not in so many words mention the issue of “agency,” it seems to have been a pertinent submission of that defense under the facts proven. In our opinion, the learned trial judge fell .into error in declining to give it. It was the affirmative defense in the case, made not only by the evidence of appellant but by the testimony of Berry himself.

The judgment is reversed, and the cause remanded.  