On a former day of the term the judgment herein was reversed and the cause remanded, because the court failed to submit the issue of agency. The opinion speaks for itself. It is not intended to review that question. There is no reason given or shown why the cases cited should be overruled and a different doctrine announced. The State in its motion, however, insists that the reason why this case should be affirmed and the court did not err in refusing and failing to charge upon the doctrine of agency, is found in the fact that appellant testified in his own behalf, denying the transaction, and in the cases cited by the State the defendant did not testify it is said. The proposition insisted upon in the motion for rehearing seems to be that if the defendant testifies denying the transaction, that, therefore, the court is relieved from charging on the issues made by other facts in the case, and that inasmuch as he denies procuring the whisky or selling it to the purchaser, that, therefore, the doctrine of agency was not in the case arising on the State's testimony and other facts of the case. This is not the law. The statute requires, and all the decisions so hold, that all issues of the case must be presented without reference to what witnesses testify to those facts, or which side places them before the jury. If the contention of the district attorney, for he files the motion for rehearing, is to be sustained as the law, it would lead to the inevitable legal conclusion that wherever the defendant testified to a fact the jury would be bound to accept it as true. The defendant testified in this case denying the State's case so far as procuring the whisky, and especially in selling it to the alleged purchaser. If this is to be taken as true, to the extent that it relieves him of being the agent under the State's testimony or other evidence in the record, then it should be taken as true for everything he testifies, and the jury in that event would be compelled to acquit because his testimony was true. It would hardly be asserted as a correct proposition that because the defendant testifies to a state of facts in contravention of other facts in the case, that, therefore, his testimony is true, and ought to be accepted as true by the jury and submitted upon that theory by the court in the charge. The law has been held to be the reverse of the district attorney's proposition. In Keith v. State, 50 Texas Crim. Rep., at page 67, this precise question was adjudicated. The following quotation from that opinion will illustrate: "From some of the statements *Page 62 incorporated in the record, the court was laboring under the impression that appellant's legal rights would be controlled and gauged by his personal testimony, and all of the defensive charges, or those favorable to him, should be in accordance with that idea. This is not the law. See Sowell v. State,32 Tex. Crim. 482. To lay down such proposition, would be more than dangerous, not only to the defendant, but to the State, and the enforcement of the criminal law. Such conclusion would be based upon the absolute accuracy and truthfulness of the appellant's testimony to the exclusion of the other evidence. If it should be held that appellant's testimony makes the only criterion of defensive matter, that idea would be predicated upon the truthfulness of his statement. If that were true, the jury would be compelled to take that view of it, and decide the case as defendant might testify. The rule is, that the law should be applied to any and all of the issues suggested by the testimony, and it is immaterial from what source the testimony comes, if it is before the jury the law should be applied to those issues." If this is not a correct statement of the law clearly and succinctly and pointedly put, it would be difficult to state it. It is unnecessary to pursue this thought further.
The motion for rehearing is overruled.
Overruled.