Appellant insists that the evidence does not support the judgment finding him guilty under the statute which makes it unlawful "for any person to sell or expose for sale or exchange any watered milk." P.C., art. 706.
T.J. League testified that he was and had been pure food inspector, for eight or nine years; that appellant ran a dairy in the City of Galveston, selling milk and was selling milk on March 13, 1917; that on that day at 7 a.m. he took a sample of his milk, paid him ten cents for the sample, took a quart of milk. That he had other bottles of milk on his wagon at the time. Of this he was certain; that appellant did not tell him he had that bottle of milk to give to Lester Davison; did not claim it was not his milk. It was shown that the sample thus taken was analyzed and contained 26 per cent of added water. Appellant testified that the witness League on the occasion mentioned took a bottle of milk from his wagon and paid him ten cents for it. He said that that was the last bottle he had and that he told League he was going to give it to Lester Davison for a drink of whisky. He claims that he had sold all of his milk and bought a bottle of milk from Mrs. Ostermayer and paid her ten cents for it, and was going to exchange it to Davison for a drink of whisky. That he had been in the habit of making such an exchange. That he put no water in it; that at the time that League got the bottle of milk he was on the street in front of Davison's place of business.
No effort was made to have the testimony of Mrs. Ostermayer. Lester Davison testified that he was in the habit of making an exchange with appellant, giving a drink of whisky for a bottle of milk and that he made no delivery to him on the day in question, though he was to do so.
The only charge given was one prepared by the appellant in which the court told the jury that if they believed or had a reasonable doubt that appellant purchased the milk from Mrs. Ostermayer to acquit him.
We are not able to agree with appellant in his contention. The circumstances testified to are sufficient to show that he had on the wagon used in his dairy business on the occasion in question bottles of milk which were exposed for sale, and from among these bottles he sold one to the witness League, which contained 26 per cent of added water. From the testimony the jury was authorized to draw the inference that the bottle of milk which was sold to League was among the others which the appellant was exposing for sale. The jury was not bound to accept his statement and their verdict sustaining the State's theory and rejecting his having been approved by the trial court is binding upon this court.
The motion is overruled.
Overruled. *Page 43