If it were an original question I should be strongly inclined to hold that while the transaction disclosed by the testimony in this case might, under appropriate instructions, support a finding that same constituted a sale, the court was not authorized, as a matter of law, to instruct the jury that it was a sale. I think the rule laid down in the case of Ray v. State, 46 Tex.Crim. Rep.; 79. S.W. Rep. 535, is the correct one and that while such a transaction may cloak and hide the true nature of the contract so that the jury could be authorized to find that the real facts show a sale, that the court is not authorized to say that a gift or loan made in good faith and not considered by the parties to be of any other character or quality than that which on its face it appears to be, is nevertheless, and under all circumstances a sale. This is not, however, a new question in this State. It was first decided adversely to appellant's contention in Keaton v. State, 36 Texas. Crim. Rep. 259, rendered on June 26, 1896, where the point here in question was directly involved. Another opinion to the same effect was delivered by Judge Henderson in another case against the same defendant on the same day (Keaton v. State, 36 Tex. Crim. 259; 36 S.W. Rep. 440), where this conclusion is reached: "Where *Page 583 defendant delivered liquor to another to be paid for in other liquor at some future time, the transaction was a sale within the law prohibiting the sale of intoxicating liquors within a local option district." This rule was followed in effect in Treadway v. State, 42 Tex.Crim. Rep. and Stanley v. State,43 Tex. Crim. 270. In 1904, in the case of Ray v. State,46 Tex. Crim. 176; 79 S.W. Rep. 535, the court held that "One who loaned another a bottle of whisky, to be returned when the other whisky came by express, the transaction not being intended as a subterfuge to cover a sale, is not guilty of an illegal sale under the local option law." This decision and the sentence above quoted expressly and clearly states my personal view. In the case of Tombeaugh v. State, 50 Tex.Crim. Rep.; 17 Texas Ct. Rep. 472, the Ray case, supra, is in terms overruled, and it was there, on a full review of all the authorities, beginning with Keaton v. State, 36 Tex.Crim. Rep. held that "Where the prosecuting witness ordered a pint of whisky at a cold storage establishment known as the Farmers' club, and paid the money to the person in charge, and the defendant, a bystander, loaned him a pint of whisky to be returned when the whisky ordered was received, there was a sale by him within the meaning of the local option law, and that it was immaterial whether the defendant was a member of such club." In the still later case of Taggart v. State, 97 S.W. Rep. 95, decided on October 24, 1906, the same line of decisions is maintained and the rule originally announced in the Keaton case was reaffirmed. In this case there is no note of any dissent and the case may be accepted as laying down finally the rule which Judge Brooks applies in the case now being considered.
It does not need to be said that the question has had a strange and unsettled history and treatment. That the rule as finally and apparently firmly adopted in this court has been correctly applied by Judge Brooks in this case, cannot be questioned, and unless I am prepared to break away from and overturn the settled rule of a decision of this tribunal, adopted after full discussion and consideration, I am committed to an affirmance of the judgment. I do not believe the rule correct or well supported in legal reason. However, to now reverse it is to "make confusion worse confounded." I owe some respect to the settled decisions and opinions of this court and out of respect to its former holdings, with reluctance I agree to the judgment of affirmance.