Opinion
No. 9606.
Delivered January 13, 1926.
1. — Possessing Intoxicating Liquor — Accomplice Testimony — Failure to Charge — Reversible Error.
Where, on a trial for possession of intoxicating liquor, the State witness Brown testified that he came from Oklahoma to Texas with appellant in a car containing a keg of whiskey, aided him in hiding the keg, and afterward went to the hiding place, and delivered two gallons of the whiskey to two purchasers, such connection constituted appellant an accomplice, and the court committed reversible error in failing to so charge the jury.
2. — Same — Accomplice — Statute Construed.
All joint transporters, purchasers, and possessors of intoxicating liquors, who become witnesses in liquor cases, are relieved by Statute from the taint of being accomplices. One who is a party to the delivery of whiskey is guilty of a felony. Brown, sustaining such relation to the transaction, thereby became an accomplice, and the court should have so told the jury. See Cate v. State, 272 S.W. 210; Miller v. State, 97 Tex. Crim. 937.
Appeal from the District Court of Wheeler County. Tried below before the Hon. W. R. Ewing, Judge.
Appeal from a conviction for possessing intoxicating liquor for the purpose of sale, penalty three years in the penitentiary.
The opinion states the case.
C. C. Small, for appellant.
Sam D. Stinson, State's Attorney, and Nat Gentry, Jr., Assistant State's Attorney, for the State.
Appellant was given three years in the penitentiary, upon trial in the District Court of Wheeler County for possessing intoxicating liquor for purposes of sale, and appeals.
Brown was a State witness. He said he came with appellant in a car in which a keg of whiskey was transported from some point in Oklahoma to Shamrock, Texas. That said keg was then hidden; but later, at appellant's direction, he went to where the keg was, poured out two gallons of whiskey and delivered same to Trout and Denham. Trout swore that he had made arrangements with appellant to get the whiskey. The trial court refused to tell the jury that Brown was an accomplice, or to submit the question to them as an issue of fact for their decision. His charge was excepted to for failing to do one or both of said things. The learned trial judge was in error in this matter. Only transporters, purchasers and possessors, who become witnesses in liquor cases, are relieved from the taint of being accomplices, if having guilty connection with the offense. The liquor Statutes penalize him who delivers intoxicating liquor to others. Admitting that Brown was not an accomplice by reason of his having transported the keg of whiskey and that same was in the possession of appellant at the point where hidden — still when Brown poured out and delivered a quantity of said whiskey, he thus was guilty of a crime in immediate relation to the transaction which formed the basis of the charge against appellant. One who delivers intoxicating liquor in this State is by Statute made a felon. Brown sustaining such relation to the transaction thereby became an accomplice and the court should so have told the jury. Cate v. State, 272 S.W. Rep. 210; Miller v. State, 97 Tex.Crim. Rep.; Dawson v. State, 97 Tex. Crim. 408. The failure to charge on accomplice testimony was called to the trial court's attention by proper exception. For the refusal to charge that Brown was an accomplice the case must be reversed. Howard v. State, 233 S.W. Rep. 847.
The judgment is reversed and the cause remanded.
Reversed and remanded.