Appellant was charged in the County Court *Page 14 of Coleman County with unlawfully selling intoxicating liquors in violation of the local option law in said county. On trial he was convicted and his punishment assessed at a fine of $50 and twenty days confinement in the county jail.
Appellant has appealed to this court and assigns sundry errors claimed to have been committed in the court below, on all of which he seeks a reversal of such judgment of conviction. Proof was duly made in the court below that local option had been legally adopted in precinct No. 7 of Coleman County, Texas, where the sale charged was made. There were but two witnesses, Ab Glasscock, to whom the sale was alleged to have been made, testified that about the first day of September, 1906, he went into Jim Woodward's clubroom in the town of Santa Anna, and made a written order for a quart of whisky which he gave to Woodward together with $1.25. That he asked Woodward if he could get the whisky then; that Woodward replied he could not unless he could borrow it from some of the boys. That he then turned to Jim Wilson, appellant, who was present at the time, and asked him if he could let him have a quart of whisky; that he had just ordered, made an order for a quart of whisky, and that when it came he could have it. He testified that appellant told Woodward to let him have a quart of his whisky, and that Woodward handed same to him. The testimony of Woodward does not in any respect contradict that of Glasscock, but relates to other matters which will be noticed further in this opinion.
The court charged the jury, in substance, if appellant loaned Glasscock a quart of whisky with the understanding that he was to receive the whisky theretofore ordered by Glasscock, that these facts under the law would constitute a sale. This instruction has been sustained in the case of Coleman v. State, 53 Tex. Crim. 578, this day decided and need not be further considered.
Appellant complains of the admission of the testimony of Jim Woodward to the effect that it was the custom of his clubroom in September, 1906, among the people who were members of same, to loan one another whisky when they had ordered whisky. He states the matter thus: "And it was the custom and rule of my clubroom to make an entry on the order given, showing who loaned the whisky so that we could tell, when the order was filled, who it was going to. For instance, if you ordered a quart of whisky from me and borrowed a quart from some one else, I would make an entry on the order `by so and so' and state who. By that means I could tell who let you have it and who was to get your whisky when it came. Yes, this was the custom last September." We think this testimony was admissible as tending to confirm and supplement the testimony of Glasscock.
Again, appellant objected to the testimony with reference to the order for whisky given by Glasscock to Woodward. We do not think the testimony subject to the objection. The effect of the evidence was simply to show the substantial fact that he had made an order in writing for the whisky. Its terms or proper construction was not an issue in *Page 15 the case, nor was the prosecution based on same. It was incidental and preliminary to the substantial charge of a sale by appellant under a pretense of a loan of whisky to Glasscock. We cannot, therefore, think that the testimony admitted impinges on the rule prohibiting the introduction of secondary evidence.
The only other ground of appellant's motion for a new trial is in substance that the verdict of the jury is contrary to the law and the evidence in that the undisputed evidence shows that if anybody made a sale of whisky to the witness, Ab Glasscock, that it was Jim Woodward and not this defendant; that the undisputed evidence shows that at the time the witness Glasscock got the whisky he paid Jim Woodward for it and there is no evidence showing that Wilson ever received anything in return for said whisky that was delivered by said Woodward to Ab Glasscock. We think under the decisions heretofore made by us that this ground of the motion cannot be sustained. The testimony of Glasscock, if believed, showed clearly that appellant loaned and had delivered to him on his promise and assurance that when the liquor which he ordered from Woodward should arrive that same should be delivered to him, appellant. This under the decisions constitute the transaction a sale, and the jury having found the truth of the State's contention it results that the conviction was authorized.
Finding no error in the proceedings of the court below, the judgment is affirmed.
Affirmed.
Brooks, Judge, absent.