
    AMONETT v. STATE.
    (No. 4793.)
    (Court of Criminal Appeals of Texas.
    June 19, 1918.)
    1. Intoxicating Liquors <⅞=»239(2) — Business or Seulingi Intoxicating Liquors — Instruction.
    In a prosecution for pursuing the business of selling intoxicating liquors in local option territory, where there was evidence that defendant was the agent of a certain party, one of the alleged purchasers, and that he bought whisky for that party from, another party, and did not himself sell it to such party, the refusal of defendant’s requested instruction that, if the sale was not made by himself to such purchaser,1 but that he bought from another party as the agent of such purchaser, and delivered the whisky under such circumstances, it would not be considered as evidence of his guilt, was error.
    2. Intoxicating Liquors <¾=»236(8) — Selling Intoxicating Liquors — Offense.
    In such prosecution evidence that defendant bought the whisky as the agent of another and delivered it to him and did not sell it to such person could not form basis of conviction.
    3. Intoxicating Liquors <S=^>223(6) — Sale oe Liquor — Oxeense.
    In a prosecution for pursuing the business of selling intoxicating- liquors in local option territory, proof of a sale to a purchaser not named in the indictment could not constitute the basis of a conviction, though admissible as tending to show that defendant was pursuing such business.
    4. Intoxicating Liquors <s=^235 — Pursuing Business of Selling! Liquor — Evidence-Former Acquittal.
    In a prosecution for pursuing the 'business of selling intoxicating- liquors in local option territory, where there was evidence of a sale to one of the alleged purchasers, evidence that defendant had been acquitted of the charge of such sale was admissible.
    5. Intoxicating Liquors <§=236(8) — Pursuing Business of Selling Liquor — Offense.
    In such prosecution it is only an illegal sale that forms the basis of a conviction, and legal sales, or a sale for which defendant had been tried and convicted would constitute no violation of the law.
    6. Witnesses <3=>345(2) — Cross-Examination — Impeachment — Conviction of Offense.
    Where one of the alleged purchasers testified for the state, the refusal of cross-examination to prove that he had been arrested for violations of the prohibition laws and imprisoned was erroneous, especially where the evidence was conflicting and the case was close.
    Appeal from District Court, Grayson County; C. T. Freeman, Judge.
    Jack Amonett was convicted of pursuing the business of selling intoxicating liquors in local option territory, and he appeals.
    Reversed and remanded.
    Cox & Cox and B. F. Gafford, all of Sherman, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was charged by indictment with pursuing the business and following the occupation of selling intoxicating liquors in local option territory.

The names of the alleged purchasers are set out in the indictment and the dates of the transactions. Evidence is also in the record to the effect that appellant was the agent of Hooker, one of the alleged purchasers, and that he bought whisky for Hooker from another party, and did not himself sell it to Hooker. The court instructed the jury with reference to this matter, but not clearly, as contemplated by the law, and exception was taken by appellant. He requested a special instruction to the effect that, if the sale was not made by himself to Hooker, but that he bought from another party as agent of Hooker and delivered the whisky under such circumstances to Hooker, this could not be considered by the jury as evidence of guilt of the defendant from that aspect of the indictment. We think this charge should have been given, and ⅞» court’s charge does not sufficiently present this matter. If appellant bought the whisky as the agent of Hooker and delivered it to him, it would not be a sale by appellant to Hooker, and* could not form the basis of conviction either for a violation of the local option law or as evidence of guilt for illegally pursuing the business of selling intoxicants in such prohibitory territory. If appellant sold the intoxicants to Hooker, this would be unlawful, but if he bought it as agent for Hooker and delivered it to him, this would not be unlawful, and the jury should have been specifically so charged. See Creed v. State, 71 Tex. Cr. R. 512, 160 S. W. 468; also Fisher v. State, 197 S. W. 189; Whitehead v. State, 66 Tex. Cr. R. 482, 147 S. W. 583.

There was also evidence introduced of sales made by appellant to Balboa Rogers. Rogers was not named in the indictment as one of the purchasers from appellant. While this testimony was admissible as tending to show that appellant was pursuing the business, in connection with other matters which would tend to show his following the business, yet, not having alleged the sales to Rogers in the indictment, it should not constitute the basis of conviction. The court was asked to so instruct the jury, but this instruction was refused. This was error. Fisher v. State, 197 S. W. 189; Whitehead v. State, 66 Tex. Cr. R. 482, 147 S. W. 583.

There was also evidence introduced of a sale to one of the alleged purchasers. In this connection it was sought to be slyjwn, to meet this sale, that appellant had been tried and acquitted for this alleged sale on the trial of a local option case. We are of opinion that the court should have permitted this evidence of acquittal, and we are further of opinion that, where a party has been acquit- ■ ted for violating the local option law, and that sale is relied upon under an indictment charging the accused with pursuing the business, this acquittal could and ought to be shown. In a violation of the prohibition law it is only an illegal sale that forms the basis of conviction. Had appellant been tried for that sale or had he been convicted for such sale, we would have a different proposition. The law only justifies a conviction for illegally selling either under a local option charge or under one for pursuing the business. Legal sales would not constitute a violation of the law in either event. If appellant' could show that he had been acquitted in a local option trial of one of the sales relied upon by the state in this case, then such sale would not form the basis of conviction, and the evidence should be admitted to show the acquittal, and the jury instructed not to regard that as a basis for conviction. That would not be an illegal sale, and would not form the basis of unlawfully following the business of selling intoxicating liquors.

The witness Hazelwood, one of the alleged purchasers, was used by the state, and upon cross-examination appellant offered to prove by him that he had been arrested in Collin and Grayson counties for various and sundry violations of the prohibition laws and incarcerated in jail. Upon objections by the state this evidence was excluded, and we think erroneously. Hazelwood was a witness for the state, and was subject to impeachment, and this is one of the modes by which a witness may be impeached. This rule applies in felonies. This case is rather on close lines for conviction. The witnesses for the state were impeached by the defendant, and no testimony was offered to sustain their reputation. The evidence is sharply in conflict with reference to the sales, and under such circumstances any evidence that threw light upon the case should have been admitted, even to the impeachment of the witnesses.

For the errors indicated, the judgment will be reversed, and the cause remanded. 
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