Nelson v. State (35 S.W.2d 443, 1930)

MARTIN, J.

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 circumstanc'es, it was not necessary to define the term “sale.” Asher v. State, 102 Tex. Cr. R. 162, 277 S. W. 1099; Stephens v. State, 50 Tex. Cr. R. 251, 96 S. W. 7; Young v. State, 92 Tex. Cr. R. 277, 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. Cr. R. 317, 250 S. W. 703.

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

PER CURIAM.

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.

LATTIMORE, J.

The only complaint made in appellant’s motion for rehearing is that the court erred in failing to give his special requested charge, in effect, that, if the jury believed from the evidence that the appellant gave ‘the whisky in question to the witness Conway, and that Conway did not pay for the same,-or if they had a reasonable doubt thereof, they should acquit the appellant. Looking to the' exceptions reserved to the court’s charge, we note that' it is stated that the defendant excepts to the court’s main charge, for the reason that nowhere therein is the defendant’s affirmative, theory of defense adequately presented, and that the defendant in this connection requested that the court give defendant’s special requested instruction No. 7. There was no exception to the charge because it did not submit to the jury any affirmative defense based on the proposition of a gift by appellant to the prosecuting witness of the whisky in question. In our original opinion, we assigned as a reason for not holding erroneous the refusal of the trial court to give special charge No. 6 that there was no exception taken in the court below to the refusal of this special charge, and that hence such refusal could not be considered by us. We see no reason for believing that the matter was incorrectly decided. This court has uniformly declined to consider matters of procedure such as this, in the absence of an exception, which must appear either by notation upon the refused special charge or by a separate bill of exceptions. It is not contended that an exception to the refusal of said special charge is before us in either form.

The motion for rehearing will be overruled.