
    WATTS v. STATE.
    (No. 11709.)
    Court of Criminal Appeals of Texas.
    May 30, 1928.
    Rehearing Denied June 28, 1928.
    1. Indictment and information <§=132(5)— Failure to require state to elect, under indictment for transporting and possessing liquor for sale involving same transaction, held not error.
    In prosecution for transportation of intoxicating liquor and for possession thereof for purposes of -sale, failure of court to require state to elect on which count in indictment it would rely for conviction held not error, where transportation and possession involved same transaction, and testimony pertinent to one was also material to the other.
    2. Criminal law <§=780(2) — Evidence held not to require charge on accomplice testimony in liquor prosecution (Pen. Code 1925, art. 670).
    Under Pen. Code 1925, art. 670, testimony showing that alleged accomplice' took money from defendant and purchased for him whisky, and then accompanied defendant in car to place where officers arrested them, held not to require charge on. accomplice te'stimony in prosecution for transporting and possessing liquor for sale.
    
      On Motion for Rehearing.
    3.' Criminal law <§=1035(3)— Conténtion that state should have elected between transactions in liquor prosecution need not be considered, where not requested below.
    Contention that evidence in liquor prosecution showed two transactions, one relating to beer and other to whisky, and ,that state should have elected between transactions, held not to require consideration on appeal, where no request was made for an election between transactions.
    Appeal from District Court, Eastland County; Geo. Li. Davenport, Judge.
    Earl Watts was convicted of transporting intoxicating liquor, and he appeals.
    Affirmed.
    J-. Lee Oearley, of Cisco, for appellant.
    A; A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for transporting intoxicating liquor; punishment, three years in the penitentiary.

Appellant was charged in an indictment containing two counts, one for the transportation of intoxicating liquor, and the other for the possession of same for purposes of sale. The verdict and judgment were specifically for the transportation of such liquor. Appellant moved the court to require the state to elect upon which count in the indictment it would rely for a conviction. The motion was overruled, and this action of the court is here attacked. Appellant cites Smith v. State, 90 Tex. Cr. R. 273, 234 S. W. 893, which is not in point, because the facts in that case are totally different from the facts here. In the case before us the transportation and possession involved the same transaction, and testimony pertinent to one was also material to the other. The court told the jury in his charge that, if they found appellant guilty, they must state in their verdict of which count he was so found. The action of the court in declining to require the state to elect is upheld in many cases. Huffhines v. State, 94 Tex. Cr. R. 292, 251 S. W. 229; Guse v. State, 97 Tex. Cr. R. 212, 260 S. W. 852; Wimberley v. State, 97 Tex. Cr. R. 316, 260 S. W. 1055; Wimberly v. State, 98 Tex. Cr. R. 152, 265 S. W. 155; Rodriquez v. State, 100 Tex. Cr. R. 11, 271 S. W. 380; Trammel v. State, 103 Tex. Cr. R. 46, 279 S. W. 277. This case is an exact case upon the facts as well as the conclusion of law. Kile v. State, 106 Tex. Cr. R. 328, 291 S. W. 1104; Gray v. State, 107 Tex. Cr. R. 620, 298 S. W. 424.

Appellant also contends that the trial court should have instructed the jury on the law of accomplice testimony. We do not think so. By the terms of article 670 of our Penal Code, a copossessor, transporter, or purchaser of intoxicating liquor is>specifically exempted from being an accomplice. The testimony in the case at bar shows that the witness asserted by appellant to be an accomplice took money from appellant and purchased for him whisky, and then accompanied appellant in the car to the place where the officers arrested them. We think appellant wrong in his contention.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

In his motion for rehearing, appellant insists that the evidence shows two “transactions,” the one relating to beer, the other to whisky, and that the state should have elected between “transactions.” It is sufficient answer to this contention to say that no request was made for an election between transactions. The only request upon the subject was as betw’een the counts in the indictment.

As we_ understand the evidence, it does not show the witness to have been an accomplice under article 670. P. C.

The motion is overruled. 
      ©^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     