Appellant requested two special charges which were refused. Upon original submission we declined to consider *Page 339 the error assigned upon this action of the court because neither from the charges themselves nor from the bills of exception did it appear that they were presented to the court before the main charge was read to the jury. Upon motion for rehearing our attention is called to the fact that included in the exceptions to the court's charge also appears an exception to the refusal of the special charges mentioned, and a recital that they were presented before the main charge was read, which exception and recitation is approved by the trial judge. The special charges will now be considered.
Appellant requested that the jury be told that if he let prosecuting witness have the liquor because appellant believed from a statement made to appellant by said witness that he was sick, and that appellant did not sell the liquor then they would find him not guilty. We find in the evidence no basis for this instruction. While appellant asserts more than once in his testimony that he did not sell the liquor in question, yet his recitation of the facts shows beyond question that even from his standpoint prosecuting witness said he had been on a drunk two or three days; that he was sick and wanted a drink; that he gave appellant two dollars and appellant told him the whisky had only cost a dollar and a half and that he gave fifty cents of the money back, as he did not want to make any profit on it, but that he kept the dollar and a half to get other whisky to replace that which he let prosecuting witness have. Under all the authorities the evidence of appellant himself makes out a sale and not a gift and the learned trial judge properly refused the requested instruction.
The other special charge seems to proceed upon the theory that if the prosecuting witness misrepresented to appellant that he was sick and thereby induced appellant to let him have the whisky that he would be entitled to an acquittal, regardless of whether the transfer was a sale or gift. We have already condensed the evidence upon this point and think the court properly declined to give it as not supported by the evidence and as not containing a correct proposition of law.
The motion for rehearing will be overruled.
Overruled.