Gaunce v. State , 109 Tex. Crim. 448 ( 1928 )

LATTIMORE, Judge.

Conviction for selling intoxicating liquor, punishment three years in the penitentiary.

The facts appear amply sufficient to support the conviction. There are five bills of exception. Bill No. 1 sets out the evidence of a state witness and appears to be reserved to the action of the court in entering judgment on the verdict of the jury on the ground that same did not support the judgment. No error appears.

Bill No, 2 complains of the refusal of a peremptory instruction to acquit. The charge was properly refused. Bill No. 3 was taken to the refusal of the court to give a special charge on circumstantial evidence. This charge was correctly refused. The state witness testified that he went to appellant’s house and bought from him two bottles of whiskey. He positively identified appellant as the man from whom he bought it. He testified to the amount of money he paid, that he knew appellant’s voice, etc. The case does not seem to be one on circumstantial evidence.

Bill No. 4 seems to be to the refusal of the court to instruct a verdict of not guilty, asked because of a variance between the allegation and the proof. The allegation was of a sale to John McBrayer, who testified that he and Joe MeBrayer went to appellant’s house in a car together on the night in question. He said that each of them wanted a bottle of whiskey, and that Joe gave him two dollars when they reached the house, and that he bought from appellant two pints of whiskey, paying him two dollars for each pint. He said he got one for himself and one for Joe. We think the allegation and the proof correspond.

The court refused to continue this case because of the alleged illness of appellant’s attorney. The bill of exceptions is qualified by the statement that appellant’s attorney claimed by him to be ill, was present at the trial and represented his client in an able and masterly manner. We do not think the bill shows any error.

Being unable to agree with any of the contentions made on behalf of the appellant, the judgment will be affirmed. •

Affirmed.