Appellant was convicted for pursuing the business of selling intoxicants in local option territory, his punishment being assessed at two years confinement in the penitentiary.
The indictment charges three sales during the month of January. Two of these sales were proved; the other was seriously contested. These were made to different parties at different times. Such is the evidence for the State. The only evidence as we understand this record, showing, or tending to show, the following of the business of selling intoxicating liquor, outside of the three sales, is found in the testimony of Davenport, who said he came with appellant in his wagon from the little town of Newsome, who had about a gallon of whisky which circumstances indicated he had gotten at the depot and was carrying home. He discovered it was whisky by reason of the fact that appellant opened the case that contained the whisky and took out one of the bottles, opened it and they took a drink. This whisky was seen in the wagon shortly before the sales indicated by the State's evidence. We are of opinion that this is not sufficient testimony to show that appellant was engaged in the business of selling intoxicants. There is no fact, or set of facts, as we understand the record, which shows that he had whisky at any other time or place, or undertook to sell any, or was in possession of any other than as indicated. We are of opinion this case is brought within the rule laid down in the cases of Thomas v. State,65 Tex. Crim. 537, 147 S.W. Rep., 262; Floyd v. State,66 Tex. Crim. 407, 147 S.W. Rep., 264; Whitehead v. State, *Page 448 66 Tex. Crim. 482, 147 S.W. Rep., 583; Molthorp v. State,66 Tex. Crim. 543, 147 S.W. Rep., 1159; Oliver v. State,69 Tex. Crim. 263, 152 S.W. Rep., 1066.
The judgment is reversed and the cause remanded.
Reversed and remanded.