In his motion and oral argument in support thereof, appellant attacks the sufficiency of the testimony, and urges that the State did not prove that the liquor sold by him was intoxicating liquor. We have looked up the authorities cited by appellant, but do not deem them in point. The facts are stated and quoted from in our former opinion. Same show pointed, positive and repeated statements of the alleged purchaser, while on the witness stand, that what he got from appellant was whiskey. The testimony showed him to be thirty-six years old and familiar with whiskey. He said he went to appellant's house and told him he wanted whiskey; that appellant said he had it; that appellant lifted a cloth under which witness saw a number of bottles of whiskey, and took one of same out, wrapped it in paper, and delivered it to witness who paid him the price demanded therefor. Appellant did not testify, nor did he put any witness on the stand to testify to a sale or his possession of any other kind of liquor; nor did he claim that there was any sale for any of the purposes excepted by statute. Underhill on Criminal Ev., Sec. 728, cites Frazier v. State,27 Ga. App. 261, 107 S.E. 896, as holding that liquor called for, delivered and paid for as whiskey, might be inferred to be whiskey in the absence of evidence to the contrary. We think this correct. See Parker v. State, 39 Tex.Crim. Rep.; Gaunce v. State,109 Tex. Crim. 448; Burrell v. State, 111 Tex. Crim. 149; Adams v. State, 111 Tex.Crim. Rep.; Belts v. State, 112 Tex.Crim. Rep.; Friedman v. United States, 13 Fed. (2d S.) 632. It is proper to allege that the article sold was whiskey, and to charge the jury to find accused guilty if he sold or had in his possession whiskey. Such proof makes out the case. Douthitt v. State, 61 S.W. Rep. 404; Rutherford v. State, 49 Tex.Crim. Rep..
The motion for rehearing is overruled.
Overruled. *Page 523