Nelson v. State

Offense, the unlawful sale of intoxicating liquor; penalty, one year in the penitentiary.

Prosecuting witness Conway testified to the unconditional sale to himself by appellant of one quart of whisky, for which he paid him $2.50. He was corroborated by another witness.

The chief contention made on this appeal is the alleged error of the court in failing to define the term "sale." As already indicated, the testimony for the State showed an absolute sale. Appellant testified that he was standing near when the prosecuting witness asked for whisky for medicinal purposes and that he then said:

"I told him that he couldn't buy it but if he would come in the house I would let him have what I had, if it would do him any good. There was nothing said about the price of it or paying for it, or borrowing it or paying it back or anything of that kind, but it was in my mind that he would replace the whisky."

We do not think that the quoted testimony called for any charge of the character suggested. The testimony for the State made out a sale and that for the appellant showed a gift of the whisky. There was not in our opinion any suggestion of barter or exchange or any character of transaction other than either a straight sale or gift of the whisky in question. Under such circumstances it was not necessary to define the term "sale." Asher v. State, 102 Tex.Crim. Rep., 277 S.W. 1099. Stephens v. State, 50 Tex.Crim. Rep., 96 S.W. 7; Young v. State, 92 Tex.Crim. Rep., 243 S.W. 472.

Special Charge No. 6 requested the court to submit the issue of the transaction being only a gift, which was apparently appellant's theory of the case. The court refused to give this charge but his action was not excepted to and in the absence of such the question cannot be reviewed. Linder v. State,94 Tex. Crim. 317, 250 S.W. 703.

Finding no error in the record, the judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

Hawkins, J., absent.

ON MOTION FOR REHEARING.