
    FRANKLIN v. STATE.
    (No. 6061.)
    (Court of Criminal Appeals of Texas.
    May 4, 1921.)
    1. Criminal law &wkey;>507(2), 742(2) — Driver, knowing automobile carried liquor, was an accomplice; whether witness was an accomplice held a jury question.
    In a prosecution for the unlawful possession of intoxicating liquors, where witness testified that he drove for defendant an automobile in which the latter placed the liquor, if the witness knew that defendant was transporting whisky in violation of law, he was an accomplice whose testimony must be corroborated, and whether he did so know 'was a question which should have been submitted to the jury, in view of Acts 36th Leg. (1919, 2d Called Sess.) c. 78, §§ 2, 31, 36.
    2. Intoxicating liquors <&wkey;>l32, 222 —' Indictment charging possession for other than medicinal, scientific, sacramental, or mechanical purposes held sufficient; Dean Law not in conflict with Volstead Act.
    An indictment, charging defendant with being in possession of intoxicating liquors not for medicinal, scientific, sacramental or mechanical purposes, is sufficient, and is not subject to be quashed on the theory that the Dean Law, under which it was drawn, conflicts with rulings on the federal law known as the Volstead Act, relating to parties becoming owners prior to such act going into effect, in a case where defendant was shown to have been transporting whisky to other parties.
    3. Criminal law <&wkey;448(l5) — Error to exclude defendant’s testimony that he was transporting whisky as agent for another.
    In a prosecution for unlawful possession of intoxicating liquors, defendant should have been permitted to testify that in transporting the whisky he was acting for other parties as their agent, since it is not likely that the jury would have fixed the same amount of punishment for an agent’s as for a principal’s violation of the law.
    Appeal from District Court, Kaufman County; Joel R. Bond, Judge.
    Eugene Franklin was convicted of having in his possession intoxicating liquor not for medicinal, scientific, pr sacramental purposes, and he appeals.
    Reversed and remanded.
    Wynne & Wynne, of Kaufman, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Appellant was convicted for having in .his possession intoxicating liquor not for medicinal, scientific, or sacramental purposes, and his punishment fixed at two years and six months in the penitentiary.

The state’s evidence places the intoxicants in his possession in an automobile. He was found in the car by the officers with one Andrew Wilson, who wás driving it. The whisky was taken, and appellant was shot by-one of the Officers. The connecting testimony is given by Wilson. He says:

“Along about the 25th of May, or the latter part of May, this year, Eugene Franklin and I went north from Terrell up abo.ut Greenville. On that occasion I was hired by Eugene Franklin to go to Greenville, and just before I got to Greenville, just opposite the college, which is there in Greenville, I met an automobile, and Eugene Franklin told me to stop, that that was the unan he was looking for. He met the man and took a grip out of that car and put it in my car.”

They then started on the return to Terrell, and on the way back met the officers who stopped the car. -They got the grip out of witness’ car which appellant had gotten from the other car near Greenville. Appellant and the witness Wilson were the only people in the automobile which was stopped by the officers. There was no other grip in the car besides the one appellant put in it. As the record is presented, it may be taken as true that appellant had the whisky; that he hired the man Wilson and his car to go with him after it; that they received it in Hunt county and brought it back into Kaufman county, where they were arrested and the whisky taken. The court did not charge on accomplice testimony, as it related to Wilson, and exception was reserved to the failure to do so. Wilson says he was a jitney driver and had been hired by appellant to make this trip. He says in his testimony that he “does not know who appellant went after that liquor for; that he did not tell the witness, and the witness claimed he had never gone after any other whisky.” The record leaves us in doubt as to whether Wilson knew appellant was going after whisky, and that whisky was contained in the suit case received by him from the other car. If he did know it, he knew that appellant was transporting the whisky, which was in violation of the law, and would make him an accomplice. It ought to have been submitted to the jury to determine whether the witness was an accomplice, and the failure to do so was error. See Acts Second Called Session Thirty-Sixth Legislature, p. 229, § 2, and page 238, § 31, and page 239, § 36. If appellant was guilty of being in possession of the whisky, or of transporting it, and Wilson had knowledge of what he was doing and was aiding appellant, it made him an accomplice, when used as a witness. This would be true under the general statute, independent of the Dean Law.

Appellant contends that the indictment in the case should have been quashed because the provisions of what is known as the Dean Law, with reference to the possession of intoxicating liquor, is contrary to the holding of the Supreme Court of the United States, in Street v. Lincoln Safe Dep. Co., 254 U. S. 88, 41 Sup. Ct. 31, 65 L. Ed. -. In that ease the Supreme Court of the United States was passing upon the question as to the right of a party who was in the lawful possession of intoxicating liquor, of which he had become the owner prior to the effectiveness of the Volstead Act (41 Stat. 305), for his own personal use. That is not the issue in this case. The evidence shows the appellant to have been in possession of the whis-ky for the purpose of transporting it to other parties, even if his own testimony be true; 'and the indictment having charged him with being in possession of it, not for medicinal, scientific, sacramental, or mechanical purposes, sufficiently charged a violation of our statute.

There is another bill of exceptions, which, to our mind, presents error. While appellant was testifying as a witness in his own behalf, he claimed not to have owned the whisky in question, but asserted that it belonged to one Lunney and Newman, admitting that he (appellant) had received the whis-ky in Hunt county, and upon being asked, “What were you doing with it?” objection was sustained to appellant answering this question, and the bill shows that the witness would have testified that he was acting as the agent for Mr. Lunney and Mr. Newman in transporting said whisky; that he did not own it or have any title to it, and that they were paying, him to transport it, and that he did not know what they wanted with it. It occurs to us that the court was in error in not permitting appellant to explain his connection with the whisky. The evidence showed that he was in possession of it, and his explanation was that he was not transporting it for himself, but for other parties, as their agent. His answer would not have probably presented a defense to the charge against him, but it was at least admissible in order that the jury might know his connection with it, to be considered by them in fixing the amount of his punishment, if they found him guilty. It'is not likely the jury would fix as heavy a penalty against an accused who might simply be acting for some one else in the transportation of intoxicating liquor with the intention of delivering it into their possession at the end of the journey, as they would if the evidence showed that accused was transporting it for the purpose of selling it, and for this reason we believe the court should have admitted this testimony.

For the errors pointed out, the judgment of the trial court is reversed, and the cause remanded. 
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