Appellant was convicted of violating the local option law, in that he sold six or seven bottles of beer to B.E. Frazier. Frazier testified that appellant lived about two and a half miles south of Stamford; that he and Walker drove out to appellant's residence and bought of him about six or seven bottles of beer, for which he paid him (appellant) seventy-five cents at the time he received the beer. He testified on cross-examination that about two weeks prior to the time he received the beer he told appellant to order him some beer, but had no recollection of signing a written order for it, nor did he recall how much he had requested appellant to order. Appellant testified in his own behalf that Frazier and Walker came to his residence, and that while there he *Page 639 let Frazier have the beer, about six or seven bottles. He further testified that about two weeks before this occurrence Frazier told him to order him two dozen bottles of beer, for which Frazier signed an order, and this was addressed to Bush Company, at Waco, Texas; that Frazier paid him (appellant) the money at the time to cover the order; that he at once mailed the order and the money to Bush Company, at Waco, and sometime afterwards received the beer and stored it in a little house on his place for Frazier until he should call for it; that the beer Frazier received from him on the occasion in question was part of the beer he ordered; that he did not sell Frazier any beer, nor did Frazier pay for any beer at the time testified by Frazier; that he made the order simply as an accommodation for Frazier and received no profit on it whatever.
The court charged the State's theory in regard to the transaction, but failed to charge the law applicable to appellant's view of the case. Exception was reserved by appellant to the failure of the court to present his theory to the effect that if they should find defendant's testimony to be correct, or there was a reasonable doubt of it they would acquit. This phase of the law, under the facts, should have been given. A party accused of a violation of the law is entitled to an instruction to the jury covering his defensive matters.
The judgment is reversed and the cause is remanded.
Reversed and remanded.
ON REHEARING. March 20, 1909.