From conviction in District Court of Newton County for selling intoxicating liquor, with punishment fixed at one year in the penitentiary, appeal is taken.
There is but one contention on behalf of appellant, viz.: that the court should have charged on the law of circumstantial evidence. The indictment was for selling liquor to one Cicero Downs, who testified that on the occasion in question he was intoxicated, but remembered going with two other men to appellant's house, and also that he paid $5.00 for some whiskey. One of the other men testified that he went with the party to appellant's house and two quarts of whiskey in a half-gallon jar were put into the car in a tow sack. He was asked the question if he saw appellant deliver the whiskey and stated he saw him lay it down on the porch at his house, and that as well as he remembers Cicero Downs picked it up and carried it to the car. The third man testified that he went with Downs and the other witness to appellant's house, and saw him there, and saw Cicero Downs with two quarts of whiskey in a tow sack; that they called appellant to the fence and he and Cicero had a few minutes' *Page 62 talk and then walked off down beside the fence into appellant's house and that when they came back they had the whiskey with them in a tow sack, and it seemed to him that Cicero was carrying it and that he brought it back, and that he did not remember which one put it in the car. No testimony was offered by the defense. No other person than appellant was shown to have been present or to have had any dealings with said parties or any connection with the whiskey. If there be any question as to the sufficiency of the testimony to make out a case by direct evidence, there could be no escape from the proposition that the testimony is so nearly direct and positive as to bring it within the rule laid down by many authorities that where the accused is put in such juxtaposition to the main fact as to leave no question, it would not be reversible error to fail to charge on circumstantial evidence. Surrell v. State, 29 Texas Crim. App., 321; Baldwin v. State, 31 Tex.Crim. Rep.; Benett v. State, 32 Tex.Crim. Rep.; Thompson v. State, 33 Tex.Crim. Rep.; Trijo v. State, 45 Tex. Crim. 127; Laird v. State, 155 S.W. Rep., 260.
Finding no error in the record, the judgment will be affirmed.
Affirmed.