
    BARNHILL v. STATE.
    (No. 3139.)
    (Court of Criminal Appeals of Texas.
    May 20, 1914.)
    Intoxicating Liquors (§ 236) — Prosecution — Sufficiency ox Evidence^Sale.
    In a prosecution for selling intoxicating liquors in prohibition territory, testimony by tbe alleged buyer that he found the whisky in his barn, but did not know to whom it belonged, and that he had previously loaned money to the defendant, but nothing was said at that time about whisky, is not sufficient to sustain a conviction, although a justice of the peace testified that the witness had sworn before him that he purchased the whisky from the defendant.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. I 236.]
    Appeal from Jack County Court; J. P. Simpson, Judge.
    Jeff Barnhill was convicted of selling intoxicating liquor in prohibition territory, and he appeals.
    Reversed and remanded.
    Henley & MeComb, of Jacksboro, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted of selling intoxicating liquor to W. I. Shadle in prohibition territory.

There is but one question we deem it necessary to discuss, the sufficiency of the evidence to sustain the conviction. Shadle testified that he ran a livery stable in Jacks-boro on the 12th day of October, 1913, and that he got three pints of whisky in a stall in his stable on that day; that he did not get it from defendant, and that he had never testified that he bought three bottles of whisky from appellant and paid him $3 for it; that he did not remember what he testified before the justice of the peace, but he never testified that he had bought any whisky from appellant; that he loaned defendant $3 on the 12th of October, but nothing was said about whisky by either of the parties; that since that time Barnhill had offered to pay the money back, but, under the advice of the sheriff, he had refused to receive it; that this was during carnival week in Jacksboro, and a good many people had whisky in his stable, but, if appellant had any in the stable, he did not know it. This is all the evidence the state introduced to prove a sale by appellant to Shadle, and it fails to show a sale; consequently the case must be reversed and remanded.

The state introduced the justice of the peace, who testified that on a former occasion Shadle had appeared before him and swore that he did buy these three bottles of whisky from appellant and paid him $3 for it. The sheriff testified that Shadle told him he had purchased this whisky from appellant and showed the whisky to him. It seems to us that, while the testimony given by Shadle on the trial of this case will not support a conviction of appellant, yet it fur- J nishes ample grounds to form the basis of a charge of perjury against Shadle, and the testimony adduced on this trial would sustain such charge, and he ought to be prosecuted therefor. If he swore falsely before the justice of the peace, and put appellant to the expense of defending against a false allegation, he should be punished. If he swore to the truth before the justice of the peace, and on this trial he is testifying falsely, the interests of the state demand his conviction. The crime of -perjury is one that all legitimate means should be used to stamp out, and, if one is not of that character of man who from choice would testify to the truth, he should be made afraid not to do so by being made aware that he who testifies falsely in the courtroom is sure of speedy and certain punishment.

The judgment is reversed, and the cause remanded.  