Appellant was convicted of selling beer on Sunday, under article 199, Penal Code. Appellant in his able brief presents a number of interesting questions; but in the view we take of the case it is only necessary to consider one; that is, did appellant make a sale of the beer? The proof shows that he was a restaurant keeper in the city of Corsicana; and that he also had a saloon both situated in the same building, and run in the same hall or room. The State's witnesses show that appellant as a restaurant keeper at the time and for some time before the alleged offense, was selling lunches and serving beer therewith. The proof showed that the lunches furnished were worth 15 cents each, and with each lunch he served a pint bottle of beer, and the ordinary price of this pint bottle was 15 cents. We quote from some of the witnesses' testimony on this subject, as follows: R.J. Roark (the party to whom it is alleged the sale was made) says: "I got two lunches on that day (Sunday) and two bottles of beer. I paid 15 cents each time for the lunch." Chapman (an employee of appellant) waited on him. "When I ordered my lunch, he asked me what I wanted to drink. I said a bottle of beer. I got the bottle of beer. I paid Savage, as I remember. George Chapman, who was waiting on the lunch counter, made me a ticket for the lunch, 15 cents; and I went and paid it to Savage, I think at the desk. I got the bottle of beer with the lunch; paid for what I got at the same time." This witness, on cross-examination, says: "I did not buy any beer. I bought the lunch. I ordered the lunch from the bill of fare. The beer was free with the lunch. The bill of fare said, `anything to drink free — coffee, milk, tea, beer, wine, etc.' When I ordered my lunch George asked me what I wanted to drink, and I told him beer. I got what I ordered for my lunch and paid for it. The price of the lunch was given on the bill of fare. I have eaten in the restaurant during the week, and got a bottle of beer if I wanted it with my lunch, just as I did on Sunday." On re-examination he says: "I got a bottle of beer with each lunch. I drank the beer at the time I ate my lunch. Drank it with my lunch." Frank Holloway testified, that he with his brother and Jim Garrison, went into the restaurant together, *Page 201 and got a lunch. "When we got our lunch, the waiter asked us what we would have to drink, and we each ordered a bottle of beer. I got a cheese-sandwich, radishes, pickles and a bottle of beer. I saw Garrison, who paid for all, give Chapman 50 cents, and think he got back 5 cents. I think beer costs 15 cents a bottle; two for a quarter, three for 40 cents." On cross-examination, he stated: "When they ordered their lunches they asked what they would have to drink, and each took a bottle of beer. The beer was free with the lunch. The beer was given to us by Chapman. The beer was served at the same time, but after we ordered the lunch." Elmore Holloway testified, that he got a lunch at appellant's restaurant, about May 29th; that he got a bottle of beer, — ham, eggs, vegetables and a bottle of beer. That he paid for the lunches; paid 30 cents for the two. That he was there on the 22nd of May (Sunday) and got a lunch and bottle of beer, and paid 15 cents for it to appellant; that he paid for the lunch and did not pay for anything else. Homer Baker, another witness, testified, that he went into the restaurant on the 29th of May, which was Sunday, with Frank Boyle; that he got a lunch, ham, eggs and onions, got as big a lunch for 15 cents as he could anywhere; that a bottle of beer was served with each lunch; that when he went into the restaurant he ordered a lunch from the bill of fare, which was 15 cents, and the waiter then asked him what he would have to drink, and he ordered beer. Frank Boyle testified, to the same effect; that he went there on one Sunday, got six lunches and with each lunch he got a bottle of beer free; that he bought the lunch and the beer was free with the lunch; that he ordered from the bill of fare. The testimony of the other witnesses for the State is to the same effect. However, Richard Brown states he got a lunch for 5 cents; that he paid for the lunch and got the beer. Chapman waited on him, and when he was through gave him the ticket, and witness put the money on the counter, where Savage was; that he saw on the bill of fare that beer was free with each order; that he wanted the beer and ordered the lunch and paid 5 cents for it; that he was there twice on the same day; that he paid 5 cents for the lunch each time, and got a glass of beer; that he ordered the lunch and paid for the lunch. Savage would not sell the beer. He sold the lunch and gave him the beer. It is not necessary to quote from other witnesses. All are to the same effect; that they bought a lunch and appellant gave them the beer. There is no controversy in the proof that the lunch was worth the amount charged for it. The accusation in the information is that appellant was a dealer in merchandise and as such sold to prosecutor Roark a bottle of beer on Sunday. The proof on the part of the State, to say nothing as to that offered by defendant, was, as heretofore shown, not a sale but a gift. Keller v. State, 23 Texas Crim. App., 259; Holley v. State, 14 Texas Crim. App., 505; Seigel v. Peo., 106 Ills., 94. Under the information and under the law appellant can not be held under this evidence for a sale of the beer. We do not deem it necessary to discuss the exception *Page 202 contained in article 200, Penal Code, with reference to restaurants, authorizing them to keep open and do business on Sundays; nor the question which appellant has presented and cited authorities in support thereof, that such restaurant keeper, even if it be conceded that he sold the beer, had a right to dispense it as a part of the meal on Sunday as on any other day. In the view we have heretofore taken of the case, the State failed to prove a sale. The judgment is reversed and the cause remanded.
Reversed and remanded.