Kennedy v. State

244 S.W.2d 808, 156 Tex. Crim. 572, 1952 Tex. Crim. App. LEXIS 1433

Opinion

DAVIDSON, Judge.

This is a conviction for unlawfully selling whiskey in a dry area, with punishment assessed at a fine of $100 and 30 days in jail.

The purchaser named in the information testified that he purchased from appellant a half-pint of whisky, for which he paid him $2.50. He fixed the time and place of the purchase at about 4:30 o’clock on the afternoon of June 2, 1951, at appellant’s residence.

Appellant, testifying as a witness in his own behalf, denied the sale of the whisky to the prosecuting witness and testified that at the time fixed by the witness for the sale he was in the State of New Mexico. Other circumstances tended to corroborate this defense.

It is apparent that the defense of alibi was raised by the testimony.

Over proper objection and requested charge, the trial court refused to submit the defense of alibi to the jury. In doing so, he fell into error which requires a reversal of the conviction.

The judgment is reversed and the cause remanded.

Opinion approved by the court.