
    FLOYD v. STATE.
    (No. 9127.)
    (Court of Criminal Appeals of Texas.
    Dec. 16, 1925.)
    1. intoxicating liquors <&wkey;>239(I) — Charge on-principals in trial for selling intoxicating liquor held reversible error.
    Charge to convict if defendant was present,-. and_, knowing unlawful intent of sellers of intoxicating liquor, encouraged them by acts, words, or gestures, held reversible error as prejudicing defendant’s rights and tending to-nullify charge to acquit, if defendant bought, liquor solely as agent of purchaser.
    2. Criminal law &wkey;>1134(3)— Questions which-may not arise in same form on retrial not discussed.
    - Questions which may not arise in same form on another trial need not be discussed,, where cause is remanded for new trial.
    Commissioners’ Decision.
    Appeal from District Court, Wichita Countty; Guy Rogers, Judge.
    George Floyd was convicted of selling intoxicating liquors, and he appeals.
    Reversed and remanded.
    Mathis & Caldwell, of Wichita Falls, for appellant.
    Tom Garrard, State’s Atty., and Grover C., Morris, Asst. State’s Atty., both of Austin,, for the' State.
   BERRY, J.

Appellant was convicted in the district court of Wichita county for the offense of selling intoxicating liquor to one B. M. Newton, and his punishment assessed at confinement in the penitentiary for a year and a day.

The witness Newton testified as follows:

“I am acquainted with the defendant, George Floyd. I have known him about four or five months. I saw him on or about the 11th day of June of this year. I bought some whisky off of him about that date. I bought a beer bottle, one pint; this looks to be the same bottle of whisky; in my opinion it is the same bottle. The bottle that I bought contained whis-ky; this bottle contains whisky. I paid the negro $3 for the whisky.”

Appellant testified in his own behalf as follows:

“I remember when I was arrested about the 10th or the 11th of June. I was working at the Savoy Hotel at the time, as porter. I was sitting out in front of the hotel there on a chair, and Mr. Newton walked up and asked me, did I know where he could find any chock beer. I told him I did not. He asked me, did I know where he could find any whisky. I told him I did not know whether X could or not. He said, ‘Could you get me any?’ I said ‘I do not know.’ He said, ‘Well, I am going up -the street, and I will be back after awhile, and see if you can get me some.’ While Mr. Newton was gone, two ,men in a Dodge car drove up and asked me if I wanted to buy any whisky. I told them, ‘No.’ They asked me would I take some and keep it in the hotel and sell it. I told them, ‘No.’ They asked, had anybody been down there to-night that wanted any whisky. I told them one man came by here awhile ago and said he would be back. He was gone a few minutes, and he came back. When he came back he asked me about it. I said, ‘I think that I can get you some,’ ‘and I went to the car where the men were, and they gave me the liquor, and I gave it to Mr. Newton. I gave the men $3. Mr. Newton gave me $3. They took $3 off of me that night. I did not get any money out of the transaction.”

Recalled by the state, Newton testified as follows:

“I heard the defendant’s testimony. I do not remember whether I asked him for chock beer. I do not think that I did. The defendant did not tell me that there were two men that he could get a bottle of whisky from. I never did leave there. I judge the transaction happened in four to seven minutes all told. That is my opinion.”

The foregoing testimony substantially states the issues involved in the case. Under this state of the record the court charged that, if the defendant bought the liquor in question from another person or persons as agent of the purchaser, and that appellant was in no way interested in the transaction in behalf of the seller, to acquit defendant. However, he also charged that—

“All persons are principals who are guilty of acting together in the commission of an offense, when an offense is actually committed by one or more persons, and others are present and knowing the unlawful act, aid by acts, or encourage by words or gestures those who are actually engaged in the commission of an unlawful act, such persons there aiding or encouraging are principal offenders and may be prosecuted as such. Now, bearing in mind the foregoing instructions, if you find and believe from the evidence beyond a reasonable doubt that some person or persons in Wichita county, Tex., on or about the 11th day of June, 1924, sold spirituous, vinous, or malt liquor capable of producing intoxication to B. M. Newton, and you further find and believe from the evidence, beyond a reasonable doubt, that the defendant, Geo. Floyd, was present at the time and place, and, knowing the unlawful intent of said person or persons, aided by acts or encouraged by words or gestures such person or persons in the sale of intoxicating liquor, if any was there sold, then you will find the defendant guilty as charged in the second count of the indictment, and assess his punishment as set forth above.”

Appellant levels many objections at this charge on principals among which one was to the effect that the issue was not raised by • the evidence. It was clearly calculated to prejudice the rights of defendant, and, if it did not altogether nullify the charge given on the'question of an innocent agent of the purchaser, it certainly had a strong tendency to do so. The authorities are clear and unequivocal to the effect that the giving of this charge under the facts in this case was reversible error. Harris v. State, 49 Tex. Cr. R. 233, 91 S. W. 590; Brewster v. State, 65 Tex. Cr. R. 474, 145 S. W. 339; Thomas v. State, 147 S. W. 578; Cowley v. State, 72 Tex. Cr. R. 173, 161 S. W. 472.

There are various other complaints urged by defendant, but, as the questions may not arise again in the same form in the event of another trial, we do not deem it necessary to discuss them.

For the error of the court in charging on principals, it is our opinion that the judgment should be reversed, and the cause remanded.

PER OURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
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