Archbell v. State , 97 Tex. Crim. 337 ( 1924 )

The unlawful sale of intoxicating liquor is the offense; punishment fixed at confinement in the penitentiary for a period of three years.

Collins, the purchaser named in the indictment, testified that he went to the home of the appellant and bought a pint of whisky for which he paid him two dollars; that the appellant went out the back door of his house and to a bridge; that he took some whisky out from under the bridge and handed it to Collins who paid him therefor. Other witnesses who were nearby corroborated the testimony of Collins.

Appellant testified that he was sick; that he kept whisky on hand as medicine; that the doctor had prescribed it; that according to the representation of Collins, he had been on the drunk, was sick and needed a drink of whisky. Appellant yielded to the importunities of Collins and agreed to let him have a pint of whisky and received from him $1.50, the understanding being that appellant would use the $1.50 to replace the whisky for his own use.

Appellant prepared a special charge suggesting that the court inform the jury that if the appellant let Collins have the whisky upon the belief from Collins' statement that he was sick, there should be an acquittal; also a special charge to the effect that the law did not look with favor upon the conduct of the officers in encouraging the commission of the crime and that if Collins was so engaged and misrepresented himself to be sick and needed whisky for medicine and that under these circumstances it was furnished him, there should be an acquittal. Neither in the charges nor in the bill complaining of their refusal is it made to appear that they were presented to the trial court before the main charge was read to the jury. This is required by the Penal Code. See Articles 735, 737a, 743; also Jones v. State,74 Tex. Crim. 205, 167 S.W. Rep., 1110; Lopez v. State,73 Tex. Crim. 624; Bedford v. State, 75 Tex.Crim. Rep., 170 S.W. Rep., 727; Vernon's Texas Crim. Stat., Vol. 2, p. 525, note 63; page 526, note 64; Alsup v. State, 85 Tex.Crim. Rep.; Lee v. State, 83 Tex.Crim. Rep.; Payne v. State,84 Tex. Crim. 2; Green v. State, 84 Tex.Crim. Rep..

Appellant filed an exception to the court's charge upon the ground that it failed to embrace in his charge an instruction to the effect that if the appellant merely consented to let Collins have a pint of whisky because the appellant was told by Collins that he had been drinking, was sick and in need of a stimulant, an acquittal should result. It is true that in both the Constitution and in the statute there is an exception in favor of the "sale of intoxicating liquors for medicinal purposes", and in a case where that issue is pertinently raised by the evidence, it is incumbent upon the court to submit it to the jury. The evidence in the present case, however, to the effect that the witness Collins had been drunk and was sick because of the need of a stimulant is not deemed such a state of facts as would justify the sale under the exception mentioned. The purpose for which, according to the appellant, Collins wanted the whisky, would be more properly denominated for "beverage purpose" than for "medicinal purpose."

Finding no error in the record, the judgment is affirmed.

Affirmed.

ON REHEARING. April 30, 1924.