Hays v. State , 279 S.W. 469 ( 1925 )

On Motion for Rehearing.

MORROW, P. J.

Our re-examination of the record in the light of the appellant’s motion for rehearing leaves us of the opinion that proper disposition of the case has heretofore been made.

We are unable to bring ourselves- in accord with the appellant’s position that there was no evidence warranting a finding by the jury that the sale 'was made to Barton and Bruce jointly. From Barton’s testimony we quote:

“Well, Bruce spoke for the whisky, but he said he did not have the money, and I told him I would give the check, and he could pay me when we got home.”

He further said that the last statement received from the bank did not show the check to have been cashed; that it was given on the 25th of July; and that he had not received" his bank statements since that time.

Bruce said that he thought Barton did the talking; thai; Barton and Hays went to the side of the house and got the whisky; that Hays had it in a sack. He said:

“I went around the house to get a drink of water, and I think the "whisky was put in the car while I was gone. The cheek was given the same day that' we' bought the whisky. We were all sitting out in front of the gallery when we gave that check.”

So far as there arises from the evidence the theory that the sale was made to Barton rather than to Bruce ,and Barton jointly, the issue was sufficiently presented to the jury, and their finding that it was joint is supported by. the evidence.

The motion for rehearing is overruled.