The appellant was convicted for the offense of selling intoxicating liquor, and his punishment assessed at one year in the penitentiary. *Page 433
The proof for the state shows a sale of one pint of intoxicating liquor to F. E. Crawford on or about the 14th of October, 1926. The appellant offered no evidence.
There are in the record for our consideration fifteen bills of exception.
Appellant's first bill of exception complains of the refusal of the learned trial judge to give a special charge submitting the law of circumstantial evidence. The qualification of the trial judge to this bill shows that the witness F. E. Crawford testified that on the day alleged in the indictment he met the appellant, whom he identified positively, and asked the appellant if he "could get a pint;" that the appellant went into a domino parlor; that witness followed the appellant to the back end of the parlor where, Crawford testified, "he gave me this bottle of whiskey," for which Crawford then paid the appellant $3.50; that witness was not personally acquainted with the appellant, but (witness stated positively) that the man who had this transaction with him was the man who was arrested by the officer Mitchell. Mitchell testified positively that he arrested the appellant and witness Crawford together in the domino parlor where Crawford stated he purchased the whiskey from appellant; that he, Mitchell, took from the witness Crawford the bottle of liquor and turned it over to the sheriff's office; that the persons he arrested in the domino parlor were the appellant and the witness Crawford. The witness Sam Ramsey testified that he, as deputy sheriff, received the bottle which the state introduced in evidence and which was identified by the other witnesses as the bottle seized by officer Mitchell from witness Crawford in the domino parlor at the time of said arrest; that when he received the bottle he endorsed thereon: "Bill McClelland, seized 10-14-26 by Mitchell;" that this was done on October 14, 1926, the day the witnesses testified the transaction in the domino parlor occurred; that it was whiskey in the bottle. Crawford having testified positively that he bought a bottle of liquor from a man who was the man arrested by Mitchell, and Mitchell having testified positively that the man he arrested with Crawford was the appellant, and that he turned the bottle of liquor over to the sheriff, and Sam Ramsey having testified positively that the bottle described had been in his custody since it was delivered to him by Mitchell, and that its contents was whiskey, made the case one of positive and not circumstantial evidence. With this qualification by the learned trial judge, this bill presents no error. *Page 434
The remaining bills of exception, as presented, show no error. The judgment of the trial court is affirmed.
Affirmed.
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.
Morrow, P. P., absent.
ON MOTION FOR REHEARING.