The judgment was affirmed at the Austin Term, and is now before us on rehearing. Appellant strenuously insists that the facts are not sufficient to support the conviction, and that the court erred in so holding. The State relies for conviction alone upon the testimony of the negro Henry Collins, who testified that he purchased a half-pint of whisky from another negro, named Stewart, who was working *Page 140 for appellant. At the time the sale was made, appellant was at the far end of the bar, fifteen or twenty feet away, waiting on several members of his club, and a screen was between him and Collins and Stewart; and therefore he could not have seen the transaction between them. It is true that he received 25 cents, paid for the whisky, according to the testimony of Collins, but as Stewart had charge of and was running a lunch stand for appellant, he testifies he thought the 25 cents was the proceeds of something sold at the lunch counter. When the money was paid to appellant he was busily engaged waiting on the members of the club, and Stewart did not tell him what the money was for, did not say anything to him. Appellant never gave the negro Stewart any authority to sell whisky for him, and if he did so on this occasion, it was without his knowledge or consent. So far as the evidence discloses, this seems to be the first transaction of this kind that had taken place in the club. The evidence is sufficient to show that Stewart made the sale, and would sustain a conviction against him. But appellant cannot be held responsible for this sale, unless the evidence connects him with it. There is no evidence showing that appellant had any knowledge of the sale or acted with Stewart in the sale. The motion for rehearing accordingly is granted, and the judgment reversed and the cause remanded.
Reversed and remanded.
Henderson, Judge, absent.