
    WILSON v. STATE.
    (No. 9811.)
    (Court of Criminal Appeals of Texas.
    Jan. 27, 1926.
    Rehearing Denied Feb. 24, 1926.)
    1. Intoxicating liquors <@=>169 — If defendant in making sale acted for himself or for bootlegger, he was guilty, but otherwise if he acted for purchaser.
    In prosecution for selling intoxicating liquor, charge that if defendant unlawfully sold to prosecuting witness, or if in securing whisky for him he acted for a bootlegger, he was guilty, but that jury should acquit if he acted for prosecuting witness, was proper.
    2. Criminal law <&wkey;l 111 (3) — Statement of court that he gave certain instruction is binding.
    Statement of court, in qualifying bill of exceptions, that he gave instruction that supplemental charge was as binding as main eharge, binds appellant.
    
      3. Witnesses <@=>277(2).
    Cross-examining one accused of selling whisky as to its reputed price held not error.
    4. Witnesses <©=>-393(3).
    Cross-examining one accused of selling whisky as to testimony before grand jury concerning his knowledge of sales of whisky held not error.
    .5. Intoxicating liquors <@=>236(11).
    Conviction of selling intoxicating liquor.sustained.
    On Motion for Rehearing.
    6. Criminal law <@=>772(2) — On charge of sale of whisky, definition of sale was not required when transaction was plainly such.
    Where one accused of selling whisky was applied to for it, said that he could get it, and later told where it was and received pay for it, no definition of sale was required in charge.
    
      7. Criminal law <@=>1091 (2).
    Error not reserved in bill of exception may not be raised.
    Commissioners’ Decision.
    Appeal' from District Court, Delta County; J. M. Melson, Judge.
    Leonard Wilson was convicted of selling intoxicating liquor, and he appeals.
    Affirmed.
    C. C. McKinney, of Cooper, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, ■and Nat Gentry, Jr., Asst. State’s- Atty., of Tyler, for the State.
   BAKER, J.

The appellant was convicted in the district court of Delta county for selling intoxicating liquor, and his punishment assessed at one year in the penitentiary.

Briefly stated the contention of the state in this case was that the appellant either sold the whi-sky in question to the prosecuting witness, Traylor, or was interested in the sale -with a person denominated by the appellant as a “bootlegger,” or in fact was representing said “bootlegger” in bringing about said sale to said Traylor. Appellant’s contention was that he had no interest in said whisky whatever, and was obtaining^ same from the “bootlegger” solely for said witness, Traylor.

There are several objections raised by the appellant to the court’s charge and his refusal to give special charges to the jury pertaining to his defense and ■ to- the effect that if he were representing said Traylor to acquit him. We have carefully examined said special charges and the objections to the court’s general charge, and are of the opinion that the appellant shows no error in the matters complained of. The court properly charged the jury that if they should find that the defendant unlawfully sold said liquor to the witness Traylor, or if said appellant in securing said whisky for said Traylor was acting for said stranger or “bootlegger,” then in either event to find him guilty.- On the other hand, he charged the jury that if they believed from the evidence that he was requested by said Traylor to get him some whisky, and in pursuance to said request did get some whisky for Traylor from a “bootlegger,” and was acting for said Traylor therein, to acquit him. We think the learned- judge fairly and amply covered all phases of the case raised by the testimony, and committed no error in his general charge or in his refusal to give any special charges requested by the appellant concerning the issues which were raised by the testimony.

The appellant also complains of the action of the court in submitting his defense under what was styled a supplemental eharge, and that the court should have given one of his special charges in lieu thereof, because the jury might not give the supplemental charge the same consideration that they would give to the main eharge, and also objected to the argument of the district attorney to the effect that the court gave the supplemental eharge because of there being little evidence in the case showing that the defendant was agent for the said Traylor, and because it is contended in said bill that the court should have instructed the jury to give the same weight to the supplemental charge that they gave to 'the court’s main charge. We find that the court, in qualifying this bill, states that he instructed the jury orally at the time he gave the supplemental charge that it was just as binding as the main charge. Under the well known rule announced by this court relative to bills of exceptions being accepted with, qualifications, same is binding on the appellant, it is hardly necessary for us again to state that the appellant is bound by said qualification of said bill, and that same shows no error in the respect complained of.

Complaint is made to the action of the court in permitting the state to ask the appellant on cross-examination if the price of a quart of whisky in Cooper was generally known to be $6, to which the appellant replied there were different prices. We see no error in this bill, and especially in view of the fact that all the testimony shows that the quart of whisky in controversy cost the witness, Traylor, $6.

Appellant complains in bill of exception 11 of the action of the court in permitting the state to ask the appellant on cross-examination relative to his swearing before the grand jury concerning his knowledge of any sales of whisky at the times inquired about, and evidently for the purpose of attempting to impeach the testimony of the appellant thereby on the evidence that he was then giving to the jury. This bill as presented shows no error.

Appellant also insists that the court erred in not giving peremptory instructions in his behalf, and that the evidence is insufficient to warrant his conviction. The evidence clearly shows that the appellant was instrumental in bringing the sale about, in having the whisky placed behind the screen, and told the witness Traylor where it was, and received the pay for it.

After a careful- examination of the entire testimony we are unable to reach the conclusion that the jury, under appropriate instructions from the court, erred in deciding the issues of fact against the appellant and in favor of the state. Finding no error in the record, we are of the opinion that the judgment of the trial court should be affirmed, and it is accordingly so ordered.

PER CURIAM. 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.

On Motion for Rehearing.

LATTIMORE, J.

The facts in this case show that the alleged purchaser of the intoxicating liquor testified that he applied to appellant for some whisky; that appellant told him he thought he could get it; that later appellant told him the whisky was behind a certain screen, and that the price was $6; that witness paid appellant said money, went behind the screen, and got the whisky. This plainly appears to be a sale, and we perceive no need for a charge defining a sale. The only issue in the case was as to whether appellant acted for the seller or the purchaser in such sale, and this theory was fully submitted in the charge of the court.

In his motion appellant urges his objection to' a remark claimed to have been made by the state’s attorney to the effect that there was little evidence supporting the proposition that appellant was the agent of the purchaser in the alleged sale, and that the supplemental charge had slight support. The bill referred to seems to have been reserved wholly upon another ground, and in no way presents any complaint of appellant directed at the remark of the district attorney.

In this condition no error is presented, and the motion for rehearing is overruled. 
      ®=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     