
    COGBURN v. STATE.
    (No. 4216.)
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1916.)
    Criminal Law <&wkey;763, 764(1) — Instruction —Evidence—Weight.
    In prosecution for selling intoxicating liquor in prohibition territory, instruction predicating guilt upon whether accused showed a bottle of whisky to state’s ■ witness before or after he paid such witness’ money to a person selling such whisky, held erroneous as being upon the weight to be given the testimony.
    [Ed. Note. — -For other cases, see Criminal Law, Cent. Dig. §§ 1731, 1737, 1742, 1743, 1746; Dec. Dig. &wkey;763, 764(1).]
    Appeal from Kaufman County Court; James A. Cooley, Judge.
    Joe Cogburn was convicted of selling intoxicating liquor in prohibition territory, and appeals.
    Reversed and remanded.
    H. W. Jones, of Mabank, and S. J. Osborne, of Kaufman, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of selling intoxicating liquor in prohibition territory.

The only exception in the record is to one paragraph of the court’s charge. It reads:

“In this connection you are instructed that if the defendant showed the bottle of whisky to John Tally before he paid the money over to Zack Woods, then you are authorized to find that he was apting with the said Zack Woods in the sale of the whisky to John Tally, and would be a principal in the sale of the whisky, and if you so find and believe from the evidence, beyond a reasonable doubt, you will find the defendant guilty as charged,” etc.

Appellant objected to the charge as being upon the weight to be given the testimony, and because it sets out facts constituting proof of sale which are erroneous in law. We do not think the charge correctly presents the law as applicable to the evidence in this case. State’s ■ witness admits that appellant told him he had no whisky for sale, but thought he could get some for him; that appellant then went up the railroad and around a box car, and when appellant came back he set down a bottle and motioned him to go get it. Appellant testified, in substance, to the same facts, hut says he acted for the accommodation of Tally; that Zack Woods was selling whisky there that day, and'he had bought some from him for himself; that when Tally approached him he went around the ear to Zack Woods, got a bottle of whis-ky from him, and carried it back, and set it down, and motioned Tally; that he had no interest in the whisky, and gave all the money to Woods that he received from Tally. The issue of agency should have been properly submitted, and his guilt or innocence not be made to depend on whether he delivered the money to Woods before or just after he motioned to Tally to go and get the whisky.

The judgment is reversed, and the cause remanded. 
      <E=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     