Treadaway v. State

The judgment was affirmed at the Dallas term, and now comes before us on motion for rehearing. We have carefully reviewed appellant's motion, and do not think there is any reason for granting the same. The undisputed evidence shows that the whisky was in the express office with a dollar C.O.D. charges thereon. The express charges for sending this whisky to Kemp from Dallas had been paid by the consignor. Appellant, upon receiving information that the whisky was in the express office, as indicated, borrowed a dollar from the prosecuting witnesses, and went to the office and paid the dollar to the express agent, receipted the express books, and took the whisky. Subsequently appellant delivered the whisky to the prosecuting witnesses, as indicated in the original opinion. This we hold was a sale on the part of appellant. The court did not err in charging on the law of agency. In the original opinion, wherein we state that appellant paid the express charges, we simply mean that he paid the dollar C.O.D. charges, and nothing more. The fact that appellant received the dollar from the prosecuting witnesses, and the further fact that appellant agreed to deliver the whisky to the prosecuting witnesses, would not make it any the less a sale of the whisky by appellant. The moment that he paid for the whisky, it matters not from whom he obtained the money, he became the owner of the whisky; and, if he delivered the whisky to the prosecuting witnesses in lieu of the dollar he obtained from them, it is none the less a sale. The motion for rehearing is overruled.

Motion overruled.