Burk v. State , 117 Tex. Crim. 144 ( 1930 )

The offense is selling intoxicating liquor; the punishment, confinement in the penitentiary for one year.

State's witness, Nolan Williams, testified that he purchased a pint of whisky from appellant on the 15th of March, 1929. He said that the transaction took place on the public square in Hamilton after dark, and fixed the time between 8:30 and 9:00 o'clock. Appellant denied the transaction, and testified he went home before dark and was not on the streets of Hamilton at the time the witness claimed he bought the whisky from him. He said he was at home in bed when some parties came by to get him to go to a neighbor's to a party. He testified further that he met the State's witness, Williams, at the party, and that Williams was in a drunken condition.

The court declined to respond to appellant's exception to the failure of the charge to embody an instruction covering the law of alibi. The State's attorney admits that the issue was raised, and confesses error. That appellant's testimony raised the issue is obvious. Branch's Annotated Penal Code, sec. 55; Anderson v. State, 34 Tex.Crim. Rep., 31 S.W. 673.

The judgment is reversed and the cause remanded.

Reversed and remanded.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.