Appellant was convicted in the District Court of Hill County of possessing intoxicating liquor for purposes of sale, and his punishment fixed at one year in the penitentiary.
The trial court correctly declined to quash the indictment herein. Tucker v. State, 251 S.W. Rep. 1090; Nantz v. State, 250 S.W. Rep. 695.
The refusal of a special charge instructing the jury that the transaction had by appellant with one Wolfe, if true, would not constitute a sale of intoxicating liquor, presents no error. The question of whether it did in fact constitute a sale would in any event be a jury question under appropriate instructions. State v. Sheffield, 183 N.C. 783; Bryant v. State, 245 S.W. Rep. 56.
At the request of the appellant the court gave the following charge:
"Gentlemen of the Jury: Even though you may believe from the evidence beyond a reasonable doubt that on or about the date alleged in the indictment, that intoxicating liquor was found in the Ford touring car, on the streets of Hubbard, Texas, and further believe beyond a reasonable doubt that said Ford car at that time was owned by the defendant, you would still not be authorized to convict him unless you further believe beyond a reasonable doubt that he was in actual personal possession of said intoxicating liquor, and further believe beyond a reasonable doubt that he had same in his actual personal possession for the purpose of sale."
The matters complained of in bills of exceptions Nos. 3, 4, 5, 8, 9 and 10 are rendered of no avail to appellant in view of the special charge given and set out above. The language of said special charge is more favorable to appellant than the statement of this court in its opinion in King v. State, 234 S.W. Rep. 1107.
It is not necessary to give a definition of possession, in a case such as this, similar to the definition given in theft. The language of the special charge above set out covered the question fully. Newton v. State, 250 S.W. Rep. 1036. Bills of exception up to No. 17 are substantially covered by what we have just said.
The case against appellant was one of circumstantial evidence, *Page 525 and in such case any matter of evidence which would tend to make out the state's case fairly, would be admissible. One of the elements of the offense charged was that the possession by appellant of the liquor in question was for purposes of sale. The state placed on the stand a witness named Wolfe, who testified that about a month before the transaction involved in this case he went to the appellant for the purpose of getting liquor and the appellant told him that he thought he could get it for him, and that he gave the appellant some money and appellant did bring to him the liquor desired, telling him that he had gotten it with the money given him by Wolfe. Whether the transaction was a sale by appellant to Wolfe or not, was for the jury, and the entire transaction was a legitimate circumstance to be considered by the jury in determining whether appellant had the liquor in question, if he did, for purposes of sale. The prosecuting attorney presented a special charge to the court which was given instructing the jury that the transaction with Wolfe could be considered by them only for the purpose of showing the intent of the defendant, if it did, with regard to the disposition of the whiskey, which was found in the car belonging to the defendant. We do not think any of the objections made to said special charge and presented in bill of exceptions No. 17 are sound. Nor do we think bill of exception No. 18 complaining of the admission of the testimony of Mr. Wolfe presents error.
On the 23rd of December, 1921, a Ford car later claimed by appellant, was found standing on the street of Hubbard in Hill County, and in it were some eighteen quarts of whiskey. Appellant was in said town going around from place to place. A witness, who testified for the state, secreted himself in a store nearby the point where the car was parked. He testified that appellant started toward the car and got up within a few feet of it and that witness started out of the store and came in contact with a lot of plows, sweeps, etc., which made quite a noise and that appellant turned and went away from the car suddenly and did not show up near the car again. We think this testimony was admissible and that the conduct of appellant was a circumstance to be considered by the jury. This is complained of by bills of exception Nos. 19, 20, 21 and 22.
We perceive no error in the testimony tracing the Ford car in question from the possession of Officer Sealey at Hubbard into the possession of Mr. Akins, deputy marshal at Waco, nor in the fact that the car was bonded out by appellant. The *Page 526 identity of the car and appellant's ownership thereof was fully testified to and there was no error in the introduction in evidence of a replevy bond made and entered into in the Federal court at Waco by the appellant replevying the Ford car in question. It was signed and sworn to by the appellant and contained the expressed statement that said car belonged to him.
Nor can we agree with appellant that the testimony of Mr. Bruner was inadmissible. This witness testified that he remembered seeing appellant in Hubbard about the 23rd of December, 1921, and that some time about that date appellant came in the office of witness and wanted to know if he would be interested in some whiskey. This testimony was material as a circumstance not only showing appellant's connection with the whiskey in question but as indicating that he had same for purposes of sale. We are unable to agree with appellant that the case of Payne v. State, 232 S.W. Rep. 802, indicates that the testimony of Mr. Wolfe was wrongfully admitted.
Finding no error in the record, the judgment of the trial court will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.