This conviction was for violating the local option law.
The witness Hammond testified that he bought a bottle of Budweiser beer from appellant and put 15 cents on the counter, and walked out. Under his testimony this was an intoxicant. He said he had no recollection of what Coleman was doing at the time he put the money on the counter and he did not know what became of it. *Page 235 When he returned he did not see the money and did not know whether appellant saw him put the money on the counter; had no recollection of appellant giving him a bottle of beer at different times, and that he had no recollection of having accepted any beer that appellant gave him. That he had accepted whisky on one occasion. That he drank uno and could tell the difference between uno and beer; that the bottles were shaped and looked alike; that when he placed the money on the counter it made the usual noise that a nickel would make. It was proved by the witness, King that Budweiser beer was intoxicating. Appellant testified that he knew the witness Hammond; that he never turned over to him a bottle of beer, nor did Hammond put 15 cents on the counter for the bottle of beer; that if he ever put 15 cents down on the counter in his place of business, he never saw it, and did not get it and knew nothing of it; that he had set beer up to him but never charged him anything for it. On cross-examination he said he did not go to the witness Hammond and ask him to sign an order for a dozen bottles of beer and date it back and tell him that if he would do so he could present the order in court and that would be all there was to it. Hammond being recalled, testified that appellant came to him and told him he had an order that if he would sign for a dozen bottles that he could present it in court and that would be all there was to the case; that he declined and would not sign any such order.
Under this state of facts appellant requested special instruction, which the court refused to give, submitting the issue made by appellant's evidence that he did not sell or intend to sell any intoxicant to the alleged purchaser, and that he did not take the 15 cents, if any was placed on the counter by said purchaser. In other words, he presents in the special instruction his theory of the case as testified by himself, that he neither sold the purchaser intoxicants nor received any money for it, but only "set up" the beer to Hammond. This was an issue squarely made by the testimony, and which appellant had the right to have the jury pass upon under appropriate instruction. Appellant did what he could in the way of asking a special charge, and this was refused. This was error.
The witness Hammond testified the bottle he received from appellant had a label on it with Budweiser printed on the label. Exception was reserved to the action of the court permitting the State to prove such label was on the bottle. We are of opinion this was not error.
The other questions suggested for revision have been decided adversely to appellant's contention in other cases decided at the present term. *Page 236
For the error indicated, the judgment is reversed and remanded.
Reversed and remanded.
Brooks, Judge, absent.
ON MOTION FOR REHEARING. June 24, 1908.