This appellant was convicted of possessing intoxicating liquor for purposes of sale. While circumstantial, the evidence shows without dispute from appellant, who did not testify, that he was in Hubbard, Texas, with eighteen quarts of whiskey in his car. When the whiskey was discovered in said car appellant abandoned it. He had recently bought the whiskey from Tom Wolfe, because of whose testimony apparently, my Brethren think this case should be reversed. Mr. Bruner swore that about the date of this transaction appellant came to witness' office and asked him if he would like to have some whiskey, or if he wanted to buy some, witness was not quite sure which. Bruner told appellant he was not interested. Wolfe swore that sometime in the fall of 1921 — he guessed about November 15 — he got a quart of whiskey from appellant; that he asked appellant if he would get him some and appellant said he would try, and brought the quart that evening. Later witness paid appellant $4.00. On cross-examination witness said that appellant brought him the whiskey in response to the idea that witness wanted him to get him some whiskey; that when he paid appellant for it the latter told him that was what the whiskey cost him; that he wanted witness to repay him what he paid for the whiskey. No request was made for any instruction telling the jury that if appellant was not selling said quart of whiskey but was only Wolfe's agent in the transaction, the jury should not consider it for any purpose. The court was asked to tell the jury not to consider Wolfe's testimony, and also to tell them that in law the transaction would not constitute a sale. The court gave a special charge relative to Wolfe's testimony, which is quoted in our opinion on motion for rehearing above, wherein the jury was specifically told that the only purpose for which Wolfe's testimony could be considered was as showing, if it did, what disposition Wolfe intended to make of the whiskey found in the car belonging to him. It was apt. We must believe that the jury appropriated Wolfe's testimony for the purpose stated and no other. Apparently, there could be no doubt from the testimony aside from that of Wolfe's as to the *Page 533 purpose of appellant in possessing the liquor in Hubbard on the day in question. He lived in Penelope, a town some miles distant from Hubbard. He was at the latter place in a car bought from Wolfe with eighteen quarts of whiskey in his possession. He approached Bruner and tried to interest him in the purchase of whiskey. The testimony of Wolfe can be entirely rejected and the case, in the language of Judge Ramsey, be made out by other testimony beyond a reasonable doubt. Common experience teaches us that parties who deal with bootleggers are reluctant to reveal the details, and when used as witnesses, will clothe their testimony in the most favorable language possible to the accused.
In this case the jury gave to appellant the lowest penalty. To reverse it because of the testimony of Wolfe as to the transaction supposed to be in November before the transaction herein involved in December, for the sole reason that the testimony of Wolfe does not make it clear whether the transaction he was talking about was one of agency or not, seems to the mind of the writer to lose sight of the real facts and pertinent issues in this case, and to reverse it for a collateral matter whose weight here, as well as likely in the minds of the jury, was very little.
I regret my inability to agree to the reversal and respectfully record my dissent.