Appellant was convicted for illegally selling intoxicating liquors in said county while the law in force made it a felony to do so, and his punishment assessed at the lowest prescribed by law.
The uncontradicted testimony shows that at the time alleged in the indictment appellant sold whisky to the party to whom the sale was alleged to have been made. The testimony of two State's witnesses was positive that appellant sold whisky to said purchaser; that the purchaser called for whisky; appellant told him it was whisky; delivered it to him as such; that it was so labeled. There is no testimony to the contrary, and no intimation therefrom that it was other than whisky. The court in submitting the case for a finding properly required the jury to believe from the evidence beyond a reasonable doubt every essential necessary under the law before they could convict. He further told them that if they had a reasonable doubt of whether the liquor claimed to have been sold was intoxicating, to find him not guilty. In addition he charged the reasonable doubt, the presumption of innocence, etc.
The court correctly told the jury that whisky is an intoxicating liquor. Rucker v. State, 24 S.W. Rep., 902; Parker v. State, 39 Tex.Crim. Rep.; Aston v. State, 49 S.W. Rep., 385; Douthitt v. State, 61 S.W. Rep., 404; Sebastian v. State,44 Tex. Crim. 508; Rutherford v. State, 49 Tex. Crim. 21; Wilcoxson v. State, 91 S.W. Rep., 581; Smith v. State,56 Tex. Crim. 501; Hambright v. State, 60 Tex. Crim. 253.
Appellant testified and claimed he was drunk and did not know that he made the alleged sale of whisky, if he did. The other State's witnesses who testified stated, in effect, that he was not so drunk, but that *Page 73 he was drinking. Appellant by his testimony did not claim that he was insane from the recent use of intoxicating liquors nor from any other cause; just drunk. He made no objection whatever to the court's charge in failing to submit a charge on insanity from the recent use of intoxicating liquor. He has a bill which was filed two or three days after the trial complaining that the court refused to give a special charge on the subject copied in the bill, but it nowhere shows, nor does the record, when that charge was presented to the judge; at least there is nothing to show that it was presented to the judge and asked at any time before the judge charged the jury. Under such circumstances it can not be considered. Arts. 735, 737, 737a and 743 as amended by the Act of April 5, 1913, p. 278; Galan v. State, 76 Tex. Crim. 619; Ross v. State, 75 Tex.Crim. Rep., and cases cited therein, and many other cases decided by this court since then exactly to the same effect. However, if the question was presented so that it could be considered, the court should not have given it. The evidence did not raise the issue. (Lucas v. State, 69 Tex.Crim. Rep..) Besides, as he was assessed the lowest penalty, the refusal to give such charge would in no way injure him. The fact that he had plead for a suspended sentence could not and would not affect the question.
It is unnecessary for the court to define what constituted intoxicating liquor other than what he did charge.
No error is shown in the trial of the case, and the judgment is affirmed.
Affirmed.