On a previous day of the term the judgment herein was affirmed. Motion is made for a rehearing for the reasons set out in the motion. There is at least one question suggested on rehearing we think should be decided favorably for appellant. It is unnecessary to recite the evidence as it is sufficiently stated in the original opinion.
It will be observed, among other things stated by the witnesses, that defendant went to a certain negro's house to obtain whisky for the alleged purchaser. It is shown that appellant got the whisky for the friend who requested him to secure it and took it to him, paying for it with money given by his principal. If it was appellant's whisky that was transferred to the purchaser, this would constitute him the seller, but if he acted as agent for the purchaser he would not be guilty of selling it. The court charged the jury that if appellant was the agent of the seller he would be guilty. This might be the law under a proper state of facts, but there is no evidence in the case that he acted as agent for the negro in selling but was the agent of the purchaser in obtaining the whisky from the negro. Under these circumstances the court erred in authorizing the jury to convict appellant if he acted as agent of the seller in transferring or carrying the whisky to the alleged purchaser. This issue is not raised by the testimony, and, therefore, could not authorize a conviction. This was error.
The motion for rehearing is granted, the affirmance set aside, and the judgment reversed and the cause remanded.
Reversed and remanded.