
    DEAN v. STATE.
    (No. 9609.)
    (Court of Criminal Appeals of Texas.
    Jan. 13, 1926.)
    1. Criminal law &wkey;>780(2) — Instruction, that state witness, in prosecution for possessing liquor; was accomplice, held improperly refused.
    In prosecution for possessing liquor where state witness testified that he had, at defendant’s direction, gone to hidden keg of whisky, poured out two gallons, and delivered it to one wh'o had arranged with defendant for it, it was' error for court to refuse to charge that such witness was accomplice, since one delivering intoxicating liquor commits a felony.
    2. Criminal law <&wkey;>507(I) — Rule as to accomplices, stated.
    Only transporters', purchasers, and possessors who become witnesses in liquor eases are relieved from taint of being accomplices, if having guilty connection with the offense.
    Appeal from District Court, Wheeler County ; W. R. Ewing, Judge.
    A. W. Dean was convicted óf possessing intoxicating liquor for beverage purposes, and he.appeals.
    Reversed and remanded.
    C. C. Small, of Wellington, for appellant.^
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty.* of Tyler, for the State.
   LATTIMORE, J.

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 whisky was transported from some point in Oklahoma to Shamrock, Tex.; that said keg was then hidden, but later, at appellant’s direction, he went to where the keg was, poured out two gallons of whisky, and delivered same to Trout and Denham. Trout swore that he had made arrangements with appellant to get the whisky. 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 x delivers intoxicating liquor to others. Admitting that Brown was not an accomplice by reason of his having transported the keg of whisky 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 whisks-, 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, 100 Tex. Cr. R. 611, 272 S. W. 210; Miller v. State, 97 Tex. Cr. R. 937, 263 S. W. 919; Dawson v. State, 97 Tex. Cr. R. 408, 261 S. W. 1050. The failure to charge $>n accomplice testimony was called to the trial court’s attention by proper exception. Por the refusal to charge that Brown was an accomplice the case must be reversed. Howard v. State, 90 Tex. Cr. R. 164. 233 S. W. 847.

The judgment is reversed, and the cause remanded. 
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