
    BREWSTER v. STATE.
    (Court of Criminal Appeals of Texas.
    March 6, 1912.)
    Intoxicating Liquors (§ 239*) — Evidence-Instructions.
    Where, on a trial for selling liquor in violation of the local option law, the evidence showed that accused bought whisky for prosecutor while acting as an accommodation agent of the prosecutor to secure whisky, a charge that if accused sold whisky to prosecutor, or acted as agent of a third person in selling whisky to prosecutor, he was guilty, was unauthorized by the evidence, which called for a charge, when requested by accused, that if he acted as the agent of prosecutor in purchasing the whisky he must be acquitted.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 331-347; Dee. Dig. § 239.*]
    Appeal from Smith County Court; Jesse F. Odom, Judge.
    Hamp Brewster was convicted of crime, and he appeals.
    Reversed and remanded.
    Hanson & Butler and Price & Beaird, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was charged with selling intoxicating liquors to J. P. Starnes in violation of the local option law. The evidence discloses, in substance, that two friends of Starnes were coming- to Tyler, Starnes sought appellant, and asked him if he had some whisky. Receiving a negative reply, he then asked appellant if he could get him some; that he and his friends wanted it. Appellant told him he did not know, but would try. Starnes gave appellant $2 with which to buy the whisky. It was stated By one of them as agreed by both, that it would take that amount ‘of money to buy ■“boot-legging whisky.” Appellant took the money and went away. Finally he returned and informed Starnes of the fact that he had bought the whisky, informing him where he had left it. Starnes went to the place indicated and found the whisky. There is no difference between the testimony as detailed by Starnes and appellant on this phase of the case. Appellant testified that he went to a certain party for the whisky and did not get it. He was told by another party from whom he could get it. He found the negro mentioned, and bought the whisky, and placed it where he informed Starnes it could be found. The witness Tendil testified that he saw appellant on the street and had a talk with him, after which appellant walked away; that shortly afterwards a negro came to him, and asked him if he (Tendil) wanted some whisky. Tendil told him, “No,” and started away, but thought of appellant asking him about whisky, and informed the negro that appellant wanted to purchase whisky; that he saw no more of the negro. Without going into a detailed statement of the evidence, this is sufficient to bring in review the questions suggested for revision.

The court instructed the jury that if appellant sold the whisky to Starnes, or was acting as the agent of some other person in selling the whisky to Starnes, they would convict him, although he may have made no profit from the transaction. Appellant excepted to this charge, and requested the court to instruct the jury that, if appellant was acting as the agent of Starnes in purchasing the whisky, they should acquit. The court’s charge was not correct. There were no facts in this case authorizing such charge. No witness testified to any fact in the case which constituted, appellant the agent of anybody in selling the whisky to Starnes. There was evidence by the state’s witness Starnes,, as well as the appellant, that appellant bought the whisky for Starnes and did not sell it to him; that he was acting in the capacity of an accommodation agent to secure the whisky for Starnes. The court was in error in giving the charge he did give, and erred in not giving the requested instructions under the facts of the case. If appellant sold the whisky to Starnes, he would be guilty.

For these errors, the judgment is reversed, and the cause is remanded.  