The conviction is for the unlawful possession for the purpose of sale of liquor capable of producing intoxication; punishment fixed at confinement in the penitentiary for a period of one year.
There was evidence that the witness McAllister, in company with the witness Payne, went to the Jenkins and Bradley Sandwich Stand and procured two drinks of whisky. At that time no other intoxicating liquor was exhibited. Whether there was payment for the drinks of whisky and whether they were delivered by the appellant is more or less in doubt. Circumstances, however, were such as would justify the conclusion that payment was made and that the appellant was an actor in the transaction. On another occasion, McAllister and Bush visited the same sandwich stand and were served with drinks of whisky, and in addition thereto McAllister acquired a bottle of whisky which he afterwards delivered to the sheriff. Touching the delivery of the whisky and the payment therefor, the evidence is about on a parity with that above described. Soon after the second occasion mentioned officers searched the premises and according to their testimony found a half-gallon jar with a small quantity of whisky in it. There were some circumstances which they detailed to the jury tending to show that whisky had been poured out of the jar into a sink.
Appellant testified and specifically controverted all the testimony touching both of the transactions in which the witness McAllister took part and denied the possession or sale of whisky. That there were two occasions is made plain, but the time intervening between the two is left extremely indefinite.
In a prosecution for the possession of intoxicating liquor for the purpose of sale it has been held competent under certain circumstances to prove sales by the accused as declared in the following precedents: Atwood v. State, 96 Tex. Crim. 249; Reddell v. State, 99 Tex.Crim. R.; Todd v. State,101 Tex. Crim. 426; Nichols v. State, 97 Tex.Crim. R.. So, in some instances proof of possession of liquor upon several occasions has been held properly received. Stringer v. State,10 S.W.2d 721.
If the jury concluded that on both of his visits McAllister purchased whisky from the appellant, the relations of one of the transactions to the other were such as to render proof of each available to the State as bearing upon the purpose of the accused as well as upon his identity as to the offender. It is manifest from the verdict that the jury found that upon one or both of the occasions the appellant *Page 630 possessed intoxicating liquor for the purpose of sale. Considering the evidence in its entirety, in connection with the verdict rendered and the penalty assessed, it is believed that in refusing the request of the accused made at the close of the testimony to require the State to elect upon which of the transactions it would rely, no error justifying a reversal was committed. If the conviction had been for more than the minimum penalty the matter would come in a different light, but inasmuch as the penalty assessed was the lowest permitted by law, it is not believed that the circumstances would require or justify a reversal of the judgment of conviction.
An affirmance is ordered.
Affirmed.
ON MOTION FOR REHEARING.