The offense is the unlawful sale of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of one year.
The witness Price, a veterinary surgeon, in company with the witness Roundtree, riding in a Ford automobile belonging to Price, went to the home of the appellant, who lived on a farm in the country. Price got out of the car, taking with him an empty quart bottle, and went to appellant and asked him if he had anything to drink. Appellant made no reply but took the bottle and filled it with whisky. During the time that Price was there, appellant then fixed a gap in the fence and worked on the fan belt of the automobile. According to Price, nothing was said about paying for the whisky, but he (Price) laid three dollars down on the running-board of the automobile at a place where it could be seen by appellant, though he did not know whether appellant saw it there or not as he was about six feet away from the car. Appellant's little girl, about five years of age, was present and picked up the money. No remarks were made about the money by either appellant or the witness. When the witness left the premises, the little girl and her father (the appellant) were together. The witness said that appellant was putting up the gap about six feet distant from the car, otherwise he would *Page 647 have handed him the money. The witness was uncertain whether the money was laid on the running-board of the car while appellant was fixing the fan belt on the car or while he was putting up the gap, after the car had passed through it. The witness said:
"We were talking about the fan belt, and when he raised up the hood is when I laid the money down there. I laid the money down there where he could see it. I laid it on the same side of the car where he was raising the hood up. . . . It was about three feet from the front fender. . . . I don't remember just exactly where the little girl was when I laid the money down. . . . All at once the little girl walked up and picked up the money."
The witness had saved the life of appellant's cow and he was grateful to him therefor. There was other testimony, but these were the salient facts.
The jury was instructed upon the law of circumstantial evidence. They were also told in a paragraph of the charge, appropriately framed, that to constitute a sale, there must be a mutual understanding or agreement between the seller and the purchaser, and that unless they believed beyond a reasonable doubt that there was such an agreement between appellant and Price, an acquittal must result.
The sufficiency of the evidence to support the verdict is challenged. The evidence furnishes no explanation or theory of the transaction other than a sale. The whisky was delivered by appellant to the alleged purchaser and a sum of money was laid down in sight of the appellant. At the time the purchaser departed with the whisky, the money which he had left in payment for it was in the hands of the infant child of appellant, and she alone was in his company.
In view of the uncontroverted and unexplained facts that the witness obtained from appellant a quart of whisky for which he expected to pay three dollars, and that he did pay that sum down in the presence and sight of appellant, in connection with the other conduct of the parties at the time, we are not prepared to say that the jury's inference that a sale was made is without the support required in a case depending upon circumstantial evidence.
The judgment is affirmed.
Affirmed.
ON REHEARING. November 14, 1923.