
    DUNSON v. STATE.
    (No. 8530.)
    (Court of Criminal Appeals of Texas.
    Dec. 10, 1924.)
    1. Criminal law <@=>742(1) — Though purchaser of liquor was employed to detect violations of Liquor Law, his testimony raises jury question.
    Though purchaser of liquor was in employ of officers, and induced defendant to sell liquor, testimony of such purchaser is sufficient to go to jury, in view of Acts 36th Leg. ■ (1919) 2d Called Sess. c. 78, § 2c, as added by Acts 37th Leg. (1921) 1st Called Sess. c. 61 (Yernon’s Ann. Pen. Code Supp. 1922, art. 588]4a3), to effect that purchaser is not accomplice of seller.
    2. Intoxicating liquors <@=>239(3) — Refusal to charge, on theory that accused acted as purchaser’s agent, held proper under evidence.
    Refusal of charge that, if defendant delivered whisky bought at instance and request of purchaser from third person, he was acting only as agent, and not guilty of charge, held proper; evidence being insufficient to raise issue.
    Appeal from District ‘ Court, Port Bend County; M. S. Munson, Judge.
    Joe Dunson, alias Blind Joe, was con--victed of selling intoxicating liquor, and he appeals.
    Affirmed.
    C. H. Chernosky, of Houston, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for selling intoxicating liquor to one B. A. Hodges. Punishment assessed is one year in the penitentiary.

Hodges testified that he was employed by the county attorney and sheriff to detect violations of the law, relative to intoxicating liquor, and was being paid $2 a day for his services, that under the direction of said officers he went to the home of appellant and purchased from him the whisky, which transaction is the basis of this prosecution.

Appellant requested the court to direct a verdict of acquittal, apparently based upon the proposition that, if the alleged purchaser was in the employ of the officers, and under their direction induced appellant to sell him the whisky, and thereby brought about a violation of the law, the evidence would be insufficient to sustain a verdict of conviction. We cannot accede to the correctness of this proposition. The Acts of the 36th Leg. 2d C. S. c. 78, § 2c, as added by Acts 37th Leg. 1st C. S. c. 61 (Vernon’s Ann. P. C. Supp. 1922, art. 588^3), provides that the purchaser of intoxicating liquor shall not be held to be an accomplice. We quote from Manos v. State (Tex. Cr. App.) 263 S. W. 310, as follows:

“It is the general rule that one in the employ of officers, by taking steps to get evidence against one who is engaged in the unlawful liquor traffic, is not thereby rendered one whose testimony, as a matter of law, requires corroboration. Underhill on Crim. Ev. (3d Ed.) § 125, p. 148, note 20; Lamm v. State, 94 Tex. Cr. R. 561, 252 S. W. 535; Laughing v. State (No. 7865) 260 S. W. 865, not yet (officially) reported; Creech v. State, 70
Tex. O. R. 229, 158 S. W. 277; Fox v. State, 53 Tex. Cr. R. 150, 109 S. W. 370.”

Appellant requested a cliarge to the effect that, if appellant delivered the whisky to Hodges, but at the instance and request of the latter bought it for him from, a third person, and that appellant was acting only as the agent of the alleged purchaser, he would not he guilty. The refusal of this charge is assigned as error. Hodges testified that he bought a pint of whisky from appellant'. On cross and redirect examination, describing the transaction in detail, he testified as follows:

“No, sir; I did not say that I sent [appellant] Joe after this whisky. He went after it without my sending him. No, sir; I did not act as principal, and he did not act as my agent to get the whisky for me. Yes, sir; I did tell you that he took his cane and went hobbling down the street and got the whisky. No, sir; he certainly did not act as my agent in going after the whisky for me. Yes, sir; he got it of his own accord. No, sir; I did not have him to get it for me. I asked him if I could buy it from him, and he said he would get it for me. He didn’t act as my agent at all. * * * I asked him for some whisky. He said he would get me some, and he went and got it. Yes, sir; he went and got it. I paid him for the whisky before he went after it. I gave him the money, and he brought me the whisky.”

Appellant asserted that Hodges brought the whisky to appellant’s house at the time he came there, and turned it over to appellant to keep for him while he was engaged in gambling with other parties then at appellant’s house, and that when Hodges left appellant redelivered the same whisky to Hodges which was brought there by him. We do not believe under these circumstances the issue of agency was .raised. There was no request on the part of Hodges that appellant buy whisky for him from some one else, but a direct offer to buy from appellant himself. In response to this appellant received the money, went away from his home for a little while, returned, and delivered the whisky to Hodges. Appellant does not claim to have purchased the liquor from a third party at the request of Hodges, but claims the whisky was brought there by Hodges himself. The case of Scott v. State, 70 Tex. Or. R. 57, 153 S. W. 871, cites many authorities supporting the proposition that, if accused is in no way interested on behalf of the seller, but simply acts as agent of the alleged purchaser, he is not guilty of making a sale, and others supporting the further proposition that, if there is evidence that accused bought liquor from another as an agent of the alleged purchaser, and was not interested in behalf of the seller, it would be error to refuse a charge affirmatively presenting this issue. These propositions, in our opinion, are not raised by the evidence in the present case. Appellant, himself, does not claim' to' have secured it from any third person, and we do not believe the testimony of Hodges raises the issue of agency.

In. our opinion the judgment should be affirmed, and it is so ordered. 
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