
    BUTLER v. STATE.
    (No. 8005.)
    (Court of Criminal Appeals of Texas.
    Feb. 13, 1924.
    Rehearing Denied March 26, 1924.)
    1. Criminal law <&wkey;507(l) — Statens witness drinking whisky manufactured by defendant held not accomplice, in view of statute as amended.
    A state’s witness who drank whisky manufactured, by defendant did not receive intoxicating liquors in violation of Acts 37th Leg. (1921) First Called Sess. c. 61 (Vernon's Ann. Pen. Code Supp. 1922, art. 588% et seq.), declaring it unlawful to possess or receive such liquors for the purpose of sale, so as to become an accomplice.
    On Motion for Rehearing.
    2. Criminal law &wkey;>742(2) — State’s witness drinking liquor manufactured! by defendant held not accomplice as matter of law under statute before amendment.
    A state’s witness testifying as to having drunk whisky manufactured by defendant before the amendment of Acts 36th Leg. (1919) Second Called Sess. c. 78, by Acts 37th Leg. (1921) First Called Sess. c. 61 (Vernon’s Ann. Peru Code Supp. 1922; art. 588% et seq.), making it unlawful to receive intoxicating liquors for the purpose of sale, held not an accomplice as a matter of law, even under the earlier act, in the absence of any contention that he consumed all that was manufactured, by defendant during the witness’ presence or had any connection with the manufacture thereof.
    tgr^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court,* San Jacinto County; J. L. Manry, Judge.
    Dink Butler was convicted of manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    Wm. McMurrey, of Cold Springs, for appellant. *
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, í\ J.

The offense is the unlawful ¡manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of two years.

Walker, the state’s witness, went to the home of the appellant to serve a summons for road work. He found the appellant engaged in making whisky. The witness remained on the premises for two hours or' more and drank some of the whisky. On cross-examination, an effort to elicit an admission from the witness that he had rendered some aid or encouragement to the appellant in making the liquor was without success.

Appellant advances the contention that the witness Walker became an .accomplice from the fact that he drank some of the whisky manufactured by the appellant. The specific claim nxade by the appellant is that in drinking the liquor, the witness violated that phase of the statute which makes it unlawful to “receive” intoxicating liquors. This view cannot be sanctioned. The statute touching the receiving of intoxicating liquors is in these words:

“That it shall be unlawful * * * to possess or receive for the purpose of sale any such liquors herein prohibited.”

The various cases of Chandler v. State, reported in 89 Tex. Cr. R. and in 230, 231, and 232 S. W., deal with a statute which was absolute in condemning, as an offens,e, the possession, receipt, and purchase of such liquors. What was said in those cases touching the testimony of an accomplice must be interpreted in the light of the change of the statute embraced in chapter 61, Acts of the 37th .Leg., 1st Called Session (Vernon’s Ann. Pen. Code Supp. 1922, art. 588% et seq.). Even under the statute as it formerly existed (chapter 78, Acts of 36th Leg., 2d Called Session), one was not regarded as an accomplice who merely took a drink of whisky which was handed to him. See Chandler v. State, 89 Tex. Cr. R. 599, 232 S. W. 337. In Elliott’s Case, 92 Tex. Cr. R. 571, 244 S. W. 1007, no analogy is observed with the present ease. In that case the witness took part in the sale of which Elliott was charged. Anderson’s Case, 91 Tex. Cr. R. 183, 238 S. W. 221, seems not in point.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

Appellant calls attention to the fact that the indictment charges the offense to have been committed in December, 1920, and that the proof conforms to the allegation; hence the law controlling is the Act of the Thirty-Sixth Legislature, 2d Called Session, chapter 78, p. 228. His point is that such law makes the “receiver” of liquor, whether by gift or purchase, an accomplice; such “receiver” having by such law been made guilty of a felony. In our opinion it is not necessary in disposing of this motion to decide whether one who is given liquor to drink becomes a “receiver” in contemplation of the statute referred to. Its disposition may be rested upon the announcement in the opinion upon rehearing in Chandler v. State, 89 Tex. Cr. R. 599, 232 S. W. 337. If ^Walker was an accomplice at all, he was such only as to that liquor which he drank. There is nq contention that he consumed all that was manufactured by appellant during the witness’ presence. He had no connection whatever with' the making of any of the whisky, and even under the law as it existed at the time of the commission of the offense we cannot hold Walker to have been an accomplice as a matter of law.

The motion for rehearing is overruled.  