Court of Criminal Appeals of Texas.
June 25, 1913.
        Appeal from District Court, Freestone County; H. B. Daviss, Judge.
        W. S. Ely was convicted of violating the
Page 807
prohibition law, and he appeals. Reversed and remanded.
        C. E. Lane, Asst. Atty. Gen., for the State.
        HARPER, J.
        From a conviction for violating the prohibition law, appellant prosecutes an appeal to this court.
        The first ground in the motion for new trial complains of the insufficiency of the testimony to sustain 
the conviction. We have read the testimony carefully, and think the facts would sustain the verdict. That 
Jim Thurman obtained a pint of whisky from W. S. Ely, appellant, is shown by the testimony of all the 
witnesses, both for the state and appellant; but Jim Thurman, the alleged purchaser, and appellant, both 
testify that it was a gift from appellant to him. So the only contested issue in the case is: Was it a sale or 
gift of the whisky? No witness testifies that they saw appellant deliver the whisky to Thurman, nor 
Thurman pay appellant any money or promise to pay him any; but the sheriff and constable testify to 
facts and circumstances which would authorize the finding that there was a delivery of the whisky, and 
circumstances which would authorize the jury to find that there was a sale. But this depends entirely upon 
circumstantial evidence, and must be deduced from the circumstances. Appellant admits delivery of the 
whisky to Thurman, but says it was a gift. As there is no positive testimony of a sale, but there is positive 
testimony as to a gift, and the state sought to overcome this by circumstantial evidence, we think the 
court should have so instructed the jury upon the request of appellant.
        The judgment is reversed, and the cause remanded.