Appellant is under conviction for the sale of intoxicating liquor, punishment being assessed at two years in the penitentiary.
The purchaser named in the indictment is Pete Woodruff. He was a man about seventy-five years of age. He testified that on the day of the alleged sale of the whisky that night he had gone to the town of Atlanta with appellant; that on the way back appellant represented that he had some good whisky and offered to sell witness a quart which *Page 330 he promised to purchase, telling appellant at the time that he did not want any "bootleg" whisky. Peter Woodruff spent the night with his brother, C.W. Woodruff, who appears to have been keeping house by himself. Appellant appeared at the house some time during the night after the brothers had retired. C.W. Woodruff lit the lamp, and appellant came in and delivered to Pete Woodruff a pint of white liquid, the bottle containing which he set down by the side of Pete Woodruff's bed, the latter giving appellant a dollar bill in payment therefor. C.W. Woodruff testified that the next morning his brother put some sugar and water in a glass, poured some of the liquid in it and drank it. The remainder was left at the house of witness for several days when he sent it to his brother Pete. This witness does not purport to say or know what the liquid was. Pete Woodruff appears to have failed to remember drinking any of the liquor on the morning after the purchase, but says upon examination he discovered it was white and had charcoal in it; that it smelled "like a sorry grade of whisky," but that he did not know what it was. Appellant introduced no evidence of any character.
It is contended that under the facts related appellant was entitled to an instructed verdict of not guilty. The evidence authorized its submission to the jury and the verdict is supported thereby.
Appellant complains because C.W. Woodruff was permitted to testify that he saw his brother pour out some of the contents of the bottle into a glass, put some sugar in it and drink it, the objection being that there was no evidence that the bottle from which the liquid was poured was the same as that alleged to have been delivered by appellant the night before. We think there is no merit in this contention The bill is qualified by the court with the statement that C.W. Woodruff had testified positively that it was the same bottle that appellant had delivered to his brother. This same question is also presented in another bill which is qualified with the same explanation as the bill just discussed.
The court was requested to charge the jury substantially that although appellant told the alleged purchaser that he would sell him whisky, and did deliver what purported to be whisky, yet, if the State had failed to prove beyond a reasonable doubt that the contents of the bottle was whisky capable of producing intoxication appellant should be acquited. It must be borne in mind that there was no affirmative testimony offered by appellant whatever; the court had told the jury in his main charge that if appellant had unlawfully sold to Pete Woodruff intoxicating liquor to find him guilty, and if they had a reasonable doubt as to his guilt to acquit him. The form of the special charge requested was argumentative, and if not upon the weight of the evidence comes very close to a violation of that rule. The court committed no error in declining to give the requested instruction. *Page 331
Neither was there error in the refusal of the court to give the special charge to the effect that unless the jury believed from the evidence beyond a reasonable doubt that the contents of the bottle alleged to have been delivered to Pete Woodruff by appellant was capable of producing intoxication they would acquit appellant. The contract entered into by the alleged purchaser and appellant the day before was for the sale and purchase of whisky; the liquor delivered bore the scent of a poor grade of whisky.
Finding no error in the record which in our opinion would justify a reversal, the judgment is affirmed.
Affirmed.
ON REHEARING.