Appellant earnestly contends that the evidence was not sufficient to justify his conviction. He was charged with the possession of intoxicating liquor for the purpose of sale. The officer who went to his house testified that he found there two bottles of liquor. The State also introduced another witness who testified that a week before the date of this search, he had bought from appellant a bottle of intoxicating liquor. Appellant seems to take the position that the evidence does not show that he had possession of any liquor for purposes of sale. It is not alleged in the indictment to whom appellant intended to make the sale, or to which of the transactions testified to by witnesses in this case, the State looked for the one forming the basis of its prosecution. There would seem to be no question of the fact that appellant possessed the liquor sold by him to the witness Holt for the purpose of sale, because he sold it. If the jury based their verdict of guilty upon this transaction, there could seem no question of the sufficiency of the testimony. If the conviction related to the possession by appellant of liquor on the occasion the officer searched his premises, it is conceded that he was then in possession of liquor, and the fact that he had sold other liquor at or about that time would seem to be sufficient proof of his purpose in having the liquor in question. True, he testified that he had it for his own personal use and intended to drink it, but this was a question for the jury to determine and they have settled it against appellant's contention. The case of King v. State, 90 Tex.Crim. Rep., 234 S.W. Rep., 1107, referred to by appellant, was tried under the law as *Page 8 it was prior to the adoption of the amendment to the Dean Law by the Thirty-seventh Legislature.
Appellant strenuously contends that whether the State relied for conviction upon the transaction testified to by the officer, or the transaction testified to by Holt, that in either event there was introduced against him evidence of two separate transactions which were violations of the law, and that the court below committed fundamental error in failing to instruct the jury as to the purpose for which such evidence could be considered. The transcript before us is bare of any showing that appellant took any exception to the charge of the court for such failure. The numerous authorities cited by appellant showing much research and investigation of the question, relate to what was held to be fundamental error prior to the adoption of the practice Act of 1913 (See Art. 735, C.C.P.), which requires that errors in charges must be excepted to by parties, at the time of trial and before such charge is read to the jury. Cases cited by the learned counsel for appellant and written by this court since the passage of said Act in which by inadvertent expressions language is used from which is sought to be drawn an inference that this court still holds the failure of the trial court to limit the purposes for which much testimony was admitted, as fundamental, — will not be found upon inspection to be in line with appellant's contention. We do not believe any case can be found in which this court has held that where the law of the case is fairly submitted, that an error such as that complained of here has been held to be fundamental. We have uniformly held to the contrary, and that unless exception is taken to the failure of the court to limit such testimony, we could not uphold a claim of error based thereon.
Being unable to agree with appellant in either of his contentions, the motion for rehearing will be overruled.
Overruled.