Cunningham v. State

Conviction for selling intoxicating liquor; punishment, one year in the penitentiary.

The indictment in this case charges in a single count that appellant did unlawfully sell to Ennis Brooks and Harvey Tutt certain intoxicating liquor. There is but one bill of exception, which brings forward appellant's exception to the charge of the court in submitting to the jury appellant's guilt predicated upon a sale of intoxicating liquor to the two persons named in the indictment, it being insisted that such charge finds no support in testimony, and that the court should have instructed the jury to return a verdict of not guilty.

Appellant did not testify. The state introduced Tutt and Brooks, the two alleged purchasers. Tutt testified that appellant came to where he and Brooks were at work, stopped his car and called witness out to where he was. He said appellant picked up a pint and held it out and asked "us if we wanted it". Witness said he asked Brooks, and Brooks said, "Hell, yes, we'll take two of them." Witness said he handed the liquor to Brooks, and that later they drank it and that it was intoxicating liquor. Brooks testified that he paid for the intoxicating liquor. We quote from his testimony: "Yes, I paid for it. I paid $1.50 for it. We got one pint. It was intoxicating liquor. Harvey delivered the liquor to me, and Harvey and I drank it. Both of us drank it." Harvey was the witness Tutt. We think this testimony sufficient for the jury to conclude that there was a sale of the liquor to the purchasers named in the indictment. We do not think this conclusion negatived by the fact that one of said parties put up all the money to pay for the liquor. The negotiations were carried on by one of the parties, to the alleged transaction, and the fruits of the sale were divided between him and the other party, though the other party paid the price. We do not think the conclusion reached by us in anyway in conflict with that announced in Brown v. State, 376 S.W. 906.

The judgment will be affirmed.

Affirmed.

Hawkins, Judge, absent.

ON MOTION FOR REHEARING.