Appellant was convicted for violating the local option law, his punishment being assessed at one year's confinement in the penitentiary.
The election was held subsequent to the going into effect of the late law making it a felony to sell whisky in a local option territory. The State's witness Tatum, one of the alleged purchasers, testified that he and Wes Tinsley bought a quart of whisky from appellant, which was some time in the month of November, 1909; that the sale occurred in Limestone County; that he did not recall exactly the date. Without going into a detailed statement of the facts in regard to the matter, the State proved a sale of a quart of whisky to the two negroes mentioned. Appellant testified in his own behalf that he did not sell them any whisky; that he was going from Coolidge to the city of Waco, and Tatum gave him a dollar and requested him to bring him a bottle of whisky from Waco, which he did.
The court charged the jury that if they believed that appellant sold the whisky in Limestone County to Henry Tatum and Wes Tinsley then they would find him guilty. Exception was reserved to the failure of the court to charge appellant's theory of the case, that is, if the negro Tatum gave appellant a dollar to purchase whisky for him in Waco, and that he did purchase it with the money given him by Tatum and brought it back and delivered it to him as an accommodation, he should be acquitted, or if they had a reasonable doubt of this he should be acquitted. We are of opinion that the failure of the court to charge this was error and inasmuch as appellant has taken advantage of this failure in motion for new trial, that it requires a reversal of the judgment.
There was also testimony to the effect that the money paid appellant by the negroes at the time of the transaction was for bananas, appellant being a banana peddler, and that the money was not paid for whisky. We are of opinion that these matters required at the hands of the court a submission of this theory to the jury in the charge, and that in failing to do so there is reversible error.
The judgment is reversed and the cause is remanded.
Reversed and remanded.
ON REHEARING. June 8, 1910.