¶1Since the original opinion was delivered the clerk of the trial court has forwarded the statement of facts which, by oversight, he had previously neglected to send.
¶2According to the testimony of William Patton, he had been acquainted with the appellant for several years. On the occasion in question, the witness overtook the appellant and got from him a quart of whisky. We quote from the witness' testimony thus:
¶3"The reason I thought I could get it, was I had got some whisky from him just a little while before that, about three weeks before that, and that's the reason I went to him again.
¶4"As to what was said about settling with him, I told him I would see him when I got back to town, and he said, `all right.' I went out there to get whisky from him, and that's what I got from him. I don't know whether it was corn whisky or not, but it tasted like whisky. That was what I was supposed to get from him. At that time I knew what he was selling his whisky for; he got $5.00 a quart for it."
¶5On cross-examination the witness said:
¶6"I saw the defendant riding out in the direction of the west part of town, and I went out there and got some whisky. Before I got out there, I saw he was stopped. … He said he had tire trouble. I might have then told him I wanted a drink of whisky; it might have been that way. Then he went out in the weeds and got a bottle of whisky. … He took a drink, and I then asked for a second drink, and he gave it to me; I put it in my pocket and said I would see him later about it. … Nothing was said with reference to the price. I never did pay him any money for it."
¶7Appellant testified that he had bought a quart of whisky and had put it out by the road; that he went to get it when Patton drove up. From the appellant's testimony we quote:
¶8"So I got the bottle, and he taken a drink and I taken a drink, and then he put this bottle in his car and said, `I'll see you later.' I told him it was not my whisky and he says, `All right, I'll take this; we will fix this later.'"
¶9Appellant denied that he had sold the whisky to Patton. He also denied that he had ever sold whisky or had ever fixed the price at five dollars a quart. From his testimony we quote further:
¶10"I sure did buy that whisky to drink myself. I wanted it for my own use, yet I let him get out there and take my whole supply of *635 whisky off, because I supposed he would replace it, or get me some more whisky in the place of it."
¶11The court in his charge defined "sale" as a transaction wherein one person, the seller, delivers the title and possession of intoxicating liquor to the buyer upon the agreement that the buyer pays or agrees to pay to the seller therefor; that an agreement may be inferred from the conduct of the parties; that if one in the possession of personal property permits another to take it with the understanding that the same is to be paid for, such transaction would be a sale.
¶12The court submitted the converse of the proposition, telling the jury that if they believed from the evidence that Patton acquired the whisky in question from the defendant in any mode or manner other than the sale as defined, or if they had a reasonable doubt thereof, they would acquit.
¶13Against the charge the point is made that the expression "words need not be spoken to constitute a sale; it may be inferred from the conduct of the parties" was upon the weight of the evidence.
¶14Complaint is also made of the admission in evidence of the testimony of the State's witness in which he said that the reason he went to the appellant to get whisky was because he thought he could get it; that he thought he could get it because he had gotten some whisky from the appellant about three weeks previous to the present transaction.
¶15The evidence that the witness had bought whisky from the appellant three weeks before the present transaction would seem to have been admissible under the averment in the indictment charging that the appellant sold whisky to the witness Patton. So far as relates to the admissibility of the testimony against the objections interposed, it would have been permissible for the State to have relied upon either the former or the present transaction. Under the record before us, the opinion is entertained that there was no harmful fault in the charge.
¶16The motion is overruled.
¶17Overruled.