Appellant in this case has filed a motion for a new trial and an able brief in which he says:
"Now at this time comes P.A. Stewart, appellant in the above entitled cause, and moves the court to grant him a rehearing herein and set aside and for naught hold the judgment and opinion of this court, entered and rendered herein on January 29, 1913, affirming the judgment of the court below, and moves and prays the court to reverse and remand the case, as in law, in his judgment, it should do, and as grounds of such motion says:
"1. The court erred in refusing to sustain the third ground of his motion for new trial in the court below, to this effect:
"`The court erred in failing and refusing to give in charge to the jury special charge No. 1, as requested by the defendant herein.'
"2. The court erred in failing and refusing to sustain the fourth ground of his motion for new trial to the following effect:
"`The court erred in failing and refusing to give in charge to the jury special charge No. 2, as requested by the defendant herein,' For the reason that the charges therein referred to are the law of the case, nowhere given in the court's general charge, and refer and *Page 391 relate to a phase of the case raised by the testimony, and which are required by law to be submitted to the jury.
"It is the purpose and object of this motion to ask the court to carefully reconsider so much of its opinion as, in substance, holds that the motion for new trial filed in the court below was not sufficiently specific as to bring in review the action of the court in refusing to give in charge to the jury the special instructions above referred to. For the purposes of this argument, we shall assume that the opinion of the court, holding that the complaint of the fourth paragraph of the court's charge was too general, is correct, and that its judgment and conclusion that, if there was error therein the same was invited, is also correct, nor shall we, in this argument, make any question with the court as to the accuracy and correctness of its opinion holding that the slight inaccuracy of description of the precinct in which the election was held did not have the effect to avoid such election."
It is thus seen that the appellant bases this whole motion on the ground that the court erred in not considering those grounds which complained of the failure to give the two special charges requested. Without entering into a discussion of whether or not those grounds are too general, and failed to point out specifically the error, we will consider whether or not the court erred in failing to give the special charges requested. The first special charge reads: "You are instructed that if you believe that defendant intended to give McMurtry the bottle of whisky in question and handed said whisky to McMurtry with that intention and that McMurtry slipped a dollar under a quilt on the bed, without the knowledge and consent or connivance of the defandant, then you will find the defendant not guilty and will by your verdict acquit the defendant."
As said in the original opinion, there was no testimony on which to base this charge. McMurtry's testimony is copied in the original opinion and he says: "I bought a pint of whisky from him there on the day of the 13th in the afternoon. That was on the 13th of February. I paid him a dollar for it. I bought this whisky in a little room southeast of the office or desk right down the aisle there. I saw where he got the whisky from; it was out of a wardrobe on the south side of the room, and I was standing right by him. I received the whisky right there without moving out of my tracks. I paid him right there in the room. He handed the whisky directly to me. I handed him the money right in the same transaction where I got the whisky."
Appellant testified when McMurtry came in the room, `I handed him the whisky; he took it in his left hand and handed me a dollar. I said, `No, that is all right; that is all right.' He said: `No, you don't need to be afraid of me.' I said, `I would not sell a man a bottle of whisky for a thousand dollars.' He took that dollar and throwed it on the bed." *Page 392
These are the only two eyewitnesses to the transaction. So it is seen there is no testimony, "that McMurtry slipped a dollar under a quilt without the knowledge of defendant, and it has always been the rule that it is not error to refuse to charge on an issue not made by the testimony.
The next special charge reads: "You are instructed, gentlemen of the jury, that if the defendant P.A. Stewart, intended to give the bottle of whisky to witness McMurtry and with such intention handed the bottle of whisky to witness McMurtry, and McMurtry after receiving the whisky offered to pay defendant for same and defendant refused to accept pay therefor and then defendant requested said witness McMurtry to keep his money or return the whisky to him, and if witness McMurtry refused to return the whisky but threw a dollar on the bed and took the whisky away against defendant's will, the defendant would not be guilty and if you find that the transaction was as detailed above or if you have a reasonable doubt as to whether the transaction was as detailed above, you will acquit the defendant."
The court, in his main charge, instructed the jury: "If you find and believe from the evidence that the defendant P.A. Stewart, did, on or about the 13th day of February, 1912, in commissioner's precinct number one in Potter County, Texas, furnish and deliver to said R.L. McMurtry intoxicating liquor, but that at the time he so furnished and delivered to said McMurtry such liquor, if any, he did not sell the same to McMurtry, but gave it to him, then in that case defendant would not be guilty of the offense charged in the indictment and defined in this charge; and if you have a reasonable doubt as to whether the defendant P.A. Stewart gave said R.L. McMurtry the intoxicating liquor set out in the indictment, on or about the 13th day of February, 1912, in Commissioner's Precinct No. one in Potter County, state of Texas, then and in that case you will acquit the defendant and say by your verdict, `Not guilty.'
"In all criminal cases the burden of proof is on the State." So it is seen that the issues presented in the special charge were as favorably presented in the court's charge than in the charge requested. The sole issue was, did appellant sell or give McMurtry the whisky. They both testified that McMurtry got the whisky, — the only question was, did McMurtry pay him for it? The charge as a whole, presents the case as favorably, or more favorably to defendant, in the light of the evidence, than the special charge requested.
This case but illustrates why the motion for new trial should state in what way the error was committed in refusing special charges. If appellant had been required to point out wherein the error consisted in refusing special charge No. 1, no such assignment would have been in the motion, and we would not have been compelled to read and re-read the evidence to see if by any construction such a charge was required or even authorized. As to the second special *Page 393 charge, the court having charged on gift, which issue the evidence raised, if the motion had pointed out wherein appellant thought his special charge No. 2, more aptly and fully presented that issue under the evidence than the charge as given by the court, it would have aided this court and the trial court in passing on that ground. But one who reads special charge No. 2, and the charge of this court as given, copied herein, will see that no jury could have been misled by the difference in wording of the two.
Motion for rehearing is overruled.
Overruled.