
    THOMAS v. STATE.
    (Court of Criminal Appeals of Texas.
    April 24, 1912.
    On Motion for Rehearing, May 15, 1912.)
    On Motion for Rehearing.
    1. Ckiminal Law (§ 1131) — Appeal—Dismissal — Reinstatement.
    A criminal appeal, dismissed for want of a sufficient recognizance, may be reinstated upon motion, accompanied by a sufficient recognizance.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2971-2979, 2985; Dec. Dig. § 1131.]
    2. Intoxicating Liqttobs (§ 239) — Bkokebs —Instkuctions—Sale by Agent — Applicability to Evidence.
    The evidence, in a prosecution for unlawfully selling intoxicants, showed that the alleged purchaser asked accused if he could get him some whisky, and accused stated that he' might; whereupon the purchaser gave him a dollar, and accused went in search of whisky and returned with a bottle, and stated that he had paid $1.75 for it, using the other’s dollar and himself furnishing the remainder of the money, and the other party took a part of the whisky, and accused kept the remainder. The alleged purchaser did not know where accused obtained the bottle, except as accused told him. Accused also testified that he bought the whisky for himself and the alleged purchaser, and had no interest therein, except as he obtained by purchasing. Held, that the evidence did not authorize an instruction that accused would be guilty of violating the local option law; if he acted as an agent for the person selling the whisky.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 331-347; Dec. Dig. § 239.]
    3. Intoxicating Liquobs (§ 236)— Local Option — Sufficiency op Evidence.
    Evidence, in a prosecution for violating the local option law, held not to justify a conviction.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. § 236.]
    
      Appeal from Sabine County Court; J. H. McGown, Judge.
    John Tilomas was convicted of unlawfully selling intoxicants, and he appeals.
    Reversed.
    Hamilton & Minton, of Hemphill, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

There is in the record what purports to be a recognizance, but which does not comply with the statute. It recites, among other things, that appellant stands charged with the offense of unlawfully selling intoxicating liquors by indictment. It does not recite that he was convicted; nor does it' recite the amount of punishment assessed. This does not meet the requirements of the statute.

The motion of the Assistant Attorney General to dismiss the appeal for want of a legal and sufficient recognizance will be sustained, and the appeal will be dismissed; and it is accordingly so ordered.

On Motion for Rehearing.

The appeal herein was dismissed recently for want of a sufficient recognizance. Appellant has filed a motion to reinstate, accompanied by a recognizance in compliance with the statute. This authorizes the reinstatement of the case.

Disposing of the case on the record, we find the statement of facts discloses that the alleged ■ purchaser, Davidson, met appellant and asked him if he could get him some whisky. Appellant told him that he had been trying to get some for himself, and that maybe he could succeed; whereupon Davidson gave him a dollar, which appellant took and went in search of the whisky. After being gone a while, he returned with a bottle of whisky, and informed Davidson that he paid $1.75 for it; that he had used Davidson’s dollar, and had himself furnished the remainder of the money to pay for the whisky. They divided the . whisky; Davidson taking his part, and appellant keeping the remainder. Davidson knew nothing in reference to where appellant obtained the bottle of whisky, further than as appellant informed him. Appellant testified practically as did the witness Davidson, and further stated that he bought the whisky from a man named Shackelford. Appellant testified, also, that he did not sell the whis-ky, and had not sold any whisky in two years to any one. He also testified that he bought the whisky for himself and Davidson, and had no interest in it, further than that he obtained by purchasing.

Under this state of facts, the court charged the jury as follows: “If you find and believe from the evidence, beyond a reasonable doubt, that the defendant was acting as an agent for party selling the whisky, he would be guilty of violating the local option law.” There is no evidence in this record which justifies this charge. None of the testimony indicates that appellant was selling the whisky for another party. The court authorized the jury to convict on testimony not raised by this record. This was error.

The writer is of the opinion that the evidence does not justify this conviction. The state put in evidence the statement of the defendant that he had bought the whis-ky for Davidson, and as his agent. In order to secure a conviction, this evidence must be shown to be not correct. Witness Davidson does not make a case, and appellant denies the sale.

The judgment is reversed, and the cause is remanded.  