The offense is the sale of whisky in a dry area, with a prior conviction alleged to enhance the punishment; the punishment, 30 days in jail and a fine of $100.00.
By a stipulated statement of facts, it was agreed:
That Investigator Bateman of the Texas Liquor Control Board testified that he went to appellant’s home on the day in question and purchased one-half pint of whisky from him.
Liquor Control Supervisor Bowman testified that Bateman turned the whisky over to him. He further testified that about two hours after the alleged sale to Bateman he drove by appellant’s home and Bateman pointed out the appellant as he sat on the front porch. He also testified that he went to appellant’s home later in the evening and found no one at home.
A former conviction for possession of beer in a dry area was established, and it was stipulated that it was the appellant who had been convicted in said cause.
*426Appellant and his witnesses testified that he had left Abilene the day before the alleged sale was made and did not return until two days thereafter.
The jury rejected the defensive testimony of alibi, and we find the evidence sufficient to support the conviction.
Bill of Exception No. 1 complains of proof of the prior conviction. The contention was that, since the prior conviction was for the unlawful possession of beer, it was not an offense of like character. We observe from the penalty assessed that the jury did not give application to the enhancement statute, and hence the appellant is in no position to complain. However, it seems to have been the holding of this court that the offenses here involved are of like character. Lenore v. State, 137 Texas Cr. Rep. 417, 129 S.W. 2d 657, and Gallagher v. State, 142 Texas Cr. Rep. 133, 151 S.W. 2d 819.
Bill of Exception No. 2 complains of the court’s charge on alibi. The only objection relates to the failure of the charge to contain the underlined phrase of the following requested charge:
“You are therefore charged that if you find from the evidence that the defendant was not in Abilene, Texas, on or about 2 o’clock, p. m., on the 12th day of December, 1953, as alleged and relied upon by the State, but was in Haskell, Texas, or if you nave a reasonable doubt thereof, you will acquit the defendant and say by your verdict not guilty.”
We are aware of the general rule that an accused is not required to prove his affirmative defense beyond a reasonable doubt but do not conclude that the charge as given, which omitted any reference to reasonable doubt, placed such a burden upon him.
This court always construes the charge as a whole, and in paragraph six thereof the jury were told that the appellant was presumed to be innocent until his guilt was established by legal and competent evidence beyond a reasonable doubt, and if they had a reasonable doubt as to his guilt they should acquit.
There does not seem to be any uniformity among the decicions of this court on the question here presented. There are decisions which hold that a failure to charge on reasonable doubt in the paragraph of the charge relating to an affirmative defense constitutes reversible error. On the other hand, there *427are cases which hold that if the charge as a whole properly presents the burden of proof, then an omission to charge on the burden of proof again in the portion of the charge relating to the affirmative defense does not constitute reversible error. Powell v. State, 28 Texas App. 393, 13 S.W. 599; 601, and Schackey v. State, 41 Texas Cr. Rep. 255, 53 S.W. 877; 879.
The majority are of the opinion that the rights of the accused could in nowise be injured by the charge as given and have concluded that reversible error is not reflected by the bill.
Finding no reversible error, the judgment of the trial court is affirmed.