Appellant's conviction was for selling intoxicating liquors in territory in which such sales were prohibited.
A motion to quash the indictment was presented. The language of the indictment is as follows:
"That on the 28th day of May, A.D. 1910, an election, in accordance with the laws of this State, was held under authority of an order of the commissioners court of Cooke County, Texas, theretofore duly made and published to determine whether or not the sale of intoxicating liquors should be prohibited in said county, and the qualified voters at said election did then and there determine that the sale of intoxicating liquors should be prohibited in said county, and thereupon the commissioners court of said county did pass and publish an order declaring the result of said election and prohibiting the sale of intoxicating liquors in said county, and thereupon said order was published for the time and in the manner required by law, and thereafter on or about the 3rd day of February, A.D. 1917, and anterior to the presentment of this indictment, in Cooke County, and State of Texas, Cliff Johnson did unlawfully sell to W.C. Rusk intoxicating liquor in violation of said law and against the peace and dignity of the State."
Supporting his contention that the indictment is insufficient, appellant cites Carnes v. State, 50 Tex.Crim. Rep.; also Commonwealth v. Cope, 53 S.W. Rep., 272, and other cases of similar tenor. The indictment is in substantially the same terms as the one declared valid by this court in Watson's case,52 Tex. Crim. 551. The opinion in the Watson case reviews the Texas cases on the subject cited by appellant, and, without repeating the discussion, our opinion is that upon the authority of the Watson case there was no error in overruling *Page 63 the motion to quash the indictment, and we are further of the opinion that the conclusion reached in the case last mentioned was correct.
The State's case was proved by a detective with whom the transaction was had. He claimed that he bought a pint of whisky from appellant; that he had asked appellant about an hour before if he knew where he could get some whisky, and appellant replied that he had a little on hand. Witness told him he was feeling bad and wanted a drink; that appellant in about an hour returned with a bottle and delivered it to witness upon the payment of a dollar. A very strong and plausible attack upon this State's witness is made in the written argument on the ground that he was hired to bring about prosecutions, and that there was proof that he offered for hire to abandon the prosecution and leave the State. The record discloses, however, that the appellant in his testimony, in a sense, corroborates the State's witness. We quote from his testimony as follows: "I didn't sell W.C. Rusk a pint of whisky. I went after a pint of whisky for him. I went down by George Leathers for the whisky. That is a pool hall — I think a negro pool hall. I got the whisky from this fellow Robinson. He is a negro, that is all I know. He was selling whisky. He had been working for Moodie Wilson in their cotton office. W.C. Rusk come up and asked me if I knew where I could get any whisky and I told him yes. After a while he came back and said what did you find out? and I said, `Give me a dollar and I will get you a pint.' He gave me a dollar to get it and when I got it I gave it to him in the pool hall. I don't remember who was present at the time. I helped him drink several drinks of whisky. I drank out of his bottle two, three, four or five times. He called me back and asked me if I wanted a drink." The jury was instructed that if appellant acted as the agent of the State's witness in buying the whisky, or if there was a reasonable doubt on the subject, he would be entitled to an acquittal. There is no complaint of the manner in which the issue of agency was submitted to the jury. The sole questions raised are the sufficiency of the indictment and sufficiency of the evidence. The indictment, in our opinion, is good, and we do not feel authorized to hold the evidence insufficient.
The judgment is affirmed.
Affirmed.
ON REHEARING. February 13, 1918.