
    WREN v. STATE.
    (Court of Criminal Appeals of Texas.
    June 26, 1912.
    Rehearing Denied Oct. 30, 1912.)
    1. Intoxicating Liquors (§ 146) — Local Option Law — Violation—“Sale.”
    Where complainant testified that on a specified day defendant told him he would receive a consignment of whisky that day and asked complainant if he wanted some, and on receiving an affirmative reply defendant agreed to leave the whisky at a particular place, and did so, where complainant received it, such facts established a completed sale without reference to whether there was any agreement as to the price or promise to pay, since without such agreement or promise a promise to pay the reasonable value of the whisky would be implied.
    [Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. §§ 159, 160, 163; Dec. Dig. § 146.]
    2. Ceiminal Law (§ 1054) — Appeal—Reception oe Evidence — Exceptions.
    Defendant cannot object to the reception of evidence to which no exception was reserved at the time.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2662-2664; Dec. Dig. I 1054.]
    3. Criminal Law (§ 693) — Trial—Exclusion oe Evidence.
    Where defendant, on cross-examination of a state’s witness in a prosecution for violating the local option law, obtained an answer that complainant came to witness’ house for .a dollar, saying that he was to get whisky from defendant, the court properly refused to strike out such answer on defendant’s verbal request after the testimony was all in.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1630; Dec. Dig. § 693.]
    4. Criminal Law (§ 1056) —Appeal — Exceptions — Review.
    Where no exception was reserved to the charge at the time it was delivered nor during the term, only such grounds of objection as were stated in the motion for a new trial could be reviewed by the Court of Appeals as provided by White’s Ann. Code Cr. Proc. § 861.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§, 2668, 2670; Dec. Dig. § 1056.]
    5. Criminal Law (§ 1055) — Appeal—Review — Necessity op Exceptions.
    Improper argument of the district attorney cannot be reviewed, where no exception was reserved thereto and no special charge requested at the trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2666, 2667; Dec. Dig. § 1055.]
    Appeal from District Court, Hamilton County; J. H. Arnold, Judge.
    D. G. Wren was convicted of violating the local option law, and be appeals.
    Affirmed.
    S. R. Allen, Chris Emmett, and J. C. Shii>-man, all of Hamilton, 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.

This is an appeal from a conviction for violating the local option law; the indictment alleging that a sale of intoxicating liquor was made by appellant to C. E. Babbitt. Babbitt testified that he met appellant in the town of Hamilton one morning; that appellant told him he would receive some whisky that day on the train and asked him if he wanted some of it; that he replied in the affirmative, and appellant told him he would leave it for him 'at his brother’s blacksmith shop. After the train came in, Babbitt says, he went to the blacksmith shop and got a quart of whisky from the place where appellant had said he would leave it, and that night in the pool hall he paid appellant a dollar for the whisky. The records of the express office show that appellant received a consignment of whisky on that day. Appellant admits he received a consignment of whisky that day, but says it had been ordered for himself and others, naming them, but says he did not agree to let Babbitt have any whisky, and did not let him have any; that the whisky Babbitt got at the blacksmith shop was whisky he had left there for one of his brothers, and did not belong to him (appellant). He also says Babbitt approached him at the pool hall that night and tendered him a dollar, saying, “Here is a dollar I owe you,” to which he replied, “You don’t, no such damn thing,” and that he refused to take the money.

Under this state of facts, appellant’s counsel earnestly insist that the court should have instructed the jury that, if appellant did not take the money, there was no sale; the charge requested reading as follows: “Gentlemen of the jury, I charge you that, if from the evidence you do not find that O. E. Babbitt paid D. G. Wren the money for the intoxicants, you will find him not guilty, even though you find that Babbitt got the intoxicants.” This is not the law as applicable to the evidence in this case, and the court did not err in refusing it. If appellant met Babbitt that morning, and appellant told him he would receive a consignment of whisky that day, and asked him if he wanted some, and, receiving an affirmative reply, agreed to leave it at a named place where Babbitt could get it, and did do so, and Babbitt went to the place and got the whisky, the sale was completed if Babbitt never paid for it. Appellant, under these facts, could maintain a suit against Babbitt and recover the purchase price of the whis-ky, and, if no price was named, the value of the whisky. Where there is an agreement to let one have property of any character, and a delivery and acceptance of the property foilows, a sale is made, and the law implies a promise to pay therefor a reasonable price. Cyc. vol. 35, p. 49, and cases cited.

A portion of the testimony of the witness Henry Spear should not have been admitted if it had been objected to; but, as it appears this portion of the testimony was drawn out by appellant on cross-examination, it presents no error. In approving the bill the court states: “In explanation of the above bill of exceptions, it is fair to the court to state that no exception to the reception of any of the evidence was reserved by the defendant at the time of its admission. The state proved by the witness Spear that Babbitt, prosecuting witness, borrowed a dollar from him, and that Spear saw Babbitt pay the defendant this dollar. There was no exception to the admission of this testimony at all. On cross-examination the defendant had the witness to state that, at the time he (Babbitt) came to witness’ house after the dollar in question, he (Babbitt) said that he was to get the whisky from ‘Hi’ (meaning the defendant). After the testimony was all in, apd when counsel was ready to argue the case, the defendant’s counsel requested the court verbally to withdraw from the jury the statement of Spear as to what Babbitt said to him about wanting the dollar to pay the defendant for whisky procured from him. This testimony was drawn out by the defendant, and under the rule laid down in Hill v. State, 54 Tex. Cr. R. 646, 114 S. W. 117, same should not have been withdrawn.”

As thus presented this does not present reversible error, as the answers of the witness were elicited by direct questions by defendant.

There was no question of an order in the case. Appellant and Babbitt both denied that Babbitt had given appellant any order for the whisky, and appellant’s defense was that he had made no order, did not have the conversation with Babbitt about selling him whisky, that he had not sold and had not ordered any whisky for Babbitt, and had not delivered any to him.

There being no exception reserved to the charge of the court at the time it was delivered to the jury, nor during the term of court, we can only consider such grounds as were stated in the motion for new trial, as the court certifies in qualifying the bills that no such bills were reserved. Appellant accepts these bills and files them, and brings to us no evidence that he did reserve such exceptions, if he did so. Consequently those matters not in the motion for new trial will not be reviewed. White’s Ann. C. C. P. § 861.

We cannot review the grounds complaining of the argument of the district attorney, as the court certifies no such exception was reserved, and no special charge was asked in regard thereto. The court refusing these bills on the ground that no such exceptions were reserved, we have no evidence that the remarks were used.

There were no special charges requested other than the one hereinbefore discussed, no exception reserved to the charge at the time it was given, and no error pointed out in the charge as given in the motion for new trial, and, if the jury believed the testimony of the state’s witness Babbitt, the evidence would support the verdict.

The judgment is affirmed.  