266 S.W. 510 | Tex. Crim. App. | 1924
Lead Opinion
Conviction is for selling whiskey, punishment three years in the penitentiary.
Error is alleged upon a charge authorizing conviction if appellant acted as the agent of a certain party as the seller, it being claimed that the evidence failed to raise such an issue. If the issue was not raised it was erroneous to submit an instruction thereon, — (See Harris v. State, 49 Tex.Crim. R.,
The judgment is affirmed.
Affirmed.
Addendum
In an extended and ingenious motion appellant urges that the learned trial judge was not justified in submitting to the jury the proposition that if appellant was acting as agent for the seller of the whisky in question, he should be convicted. This was but the converse of a proposition advanced by the appellant on the trial and which he attempted to support by evidence and had submitted to the jury in the charge. That appellant delivered to Mr. Counts a half gallon of whisky and received from him ten dollars in pay therefor, was not denied. The proposition of the State was that appellant made a sale direct to Counts, and appellant's contention was *513 that after discussing the matter of the whisky with Counts, he went off to where there was a Bohemian who had whiskey for sale and that he got from said Bohemian the half gallon, of whiskey which he delivered to Counts and that he had no interest in the transaction. We do not attempt to set out all the facts, but we are of opinion the trial court was justified in submitting the converse of the proposition that appellant was the accommodation agent for the purchaser, and in telling them that if they believed beyond a reasonable doubt that he was the agent for the seller they could convict. We regret our inability to agree to the proposition regarding the application of circumstantial evidence, contended for by appellant. The cases discussed in the motion were considered by us at the time the original opinion was written.
The motion for rehearing will be overruled.
Overruled.