This case, and the Robinson case, 186 S.W. Rep., 196, and the Fisher case, 197 S.W. Rep., 189, were all tried in the lower court at the same term and were appealed and filed here about the same time. All three of them were submitted and orally argued by their respective attorneys on the same day in this court and they were all under consultation and consideration by the court at the same time, though the opinions were handed down on different dates.
Appellant contends that as the Robinson and Fisher cases were reversed because of the charge of the court, and as the charge on that point was substantially the same in this case, that this case should also be reversed. The Robinson and Fisher cases were not reversed because of the charge within itself being wrong, but because it was misleading as applicable to the facts therein proven. As shown by the opinion in the Robinson case, the indictment therein charged that one sale was made to Alexander and another to Tucker. There was evidence tending to prove that appellant had made one sale to each of these parties named, but no evidence of more than one sale to either and no evidence of any sale to any other party named or described in the indictment. With reference to the sale to Alexander, there was an issue of fact as to whether there was a sale made to him by appellant or whether appellant was acting only as the agent of Alexander in procuring liquor for him. The charge of the court in the Robinson case on the point was quoted in the opinion therein. In it the court submitted the question of whether or not Robinson acted as the agent of Alexander in buying the whisky and the charge was held to be misleading, in that, even though no sale was proved to Alexander by appellant he might nevertheless be guilty if the other sale alleged was proven, and some *Page 35 other sale was made to an unknown party other than to Alexander. The Robinson case was reversed because the charge authorized his conviction if only one of the alleged sales was proven, and the jury could infer from the facts that another sale to an unknown and unnamed party was made.
In the Fisher case only two sales to Alexander on different dates were alleged. No other specific sale was alleged to any other person named. The charge of the court in that case, on this point, is quoted in the opinion. There was evidence in that case tending to show that two sales were made to Alexander as alleged, but there was also proof that another distinct and separate sale was made to one Walker. Walker was not named in the indictment as one of the persons to whom appellant made a sale. It was held that the charge was misleading in that it did not require the conviction to be based upon the two sales to Alexander alone but that it authorized a conviction if one sale was made to Alexander and another sale made to Walker. Because of this state of fact and the charge authorizing the conviction in that case if one sale was made to Alexander and another to Walker, and the refusal of a special charge clearly submitting the point, the charge was held misleading and the case reversed.
No such state of fact was proven in this case as that which was proven in either the Robinson or the Fisher cases on this point. In this case sales were alleged to have been made, one to Tucker and another to Curry. The evidence was clearly sufficient to show that separate and distinct sales were made to each of these persons, Tucker and Curry, and there was no other evidence showing, or tending to show that any other sale was made to any other person. It is true the indictment herein, as in the Fisher and Robinson cases, and as is customary in such indictments, alleged that other sales were made to other persons to the grand jurors unknown, but, as stated, no proof whatever was offered of any other sale to any other person than to the persons alleged in the indictment. In submitting this issue to the jury for a finding the court required the jury to believe beyond a reasonable doubt that appellant engaged in the business or occupation of the sale of intoxicating liquors in Taylor County, Texas, where prohibition was in force, and he within three years before the indictment was found, "did make as many as two separate sales of intoxicating liquors in Taylor County, Texas, if he did so, as charged in the indictment." The distinction, therefore, between this and the Fisher and Robinson cases is marked and is clear and distinct. The charge objected to in the Fisher and Robinson cases was misleading and held error therein because of the state of facts proven in each case, but the charge in this case was not, and could not have been misleading and was in accordance with the law, the allegations and the proof herein.
No other questions need be discussed as they were all properly decided in the original opinion.
The motion is overruled. Overruled. *Page 36