
    ELLIOTT v. STATE.
    (No. 6635.)
    (Court of Criminal Appeals of Texas.
    Feb. 8, 1922.
    On Motion for Rehearing, Nov. 8, 1922.)
    Criminal law <&wkey;507(4) — Deputy sheriff to whom seller of whisky handed bottle containing whisky held an accomplice.
    In prosecution for the unlawful sale of intoxicating liquor alleged to have been committed at a time when the purchaser was in the attitude of an accomplice witness, witness, who testified that he went with one to whom defendant had agreed to sell whisky to alley in which defendant had agreed to meet such third person, and that defendant had handed the whisky to the witness, who in turn handed it to third person, and that witness and third person then took a drink from the bottle after which third person put it in his pocket, was an accomplice, even though he was a deputy sheriff.
    Appeal from Criminal District Court, Bowie County; P. A. Turner, Judge.
    March Elliott was convicted of unlawfully selling intoxicating liquor, and he appeals.
    Reversed and remanded.
    Keeney & Dalby, of Texarkana, for appellant.
    
      R. 6. Storey, Asst. Atty. Gen., for the State.
   LATTI^VIORE, J.

Appellant was convicted in the- criminal district court of Bowie county of the offense of unlawfully selling intoxicating liquor, and his punishment fixed at confinement in the penitentiary for a period of two years.

-.The facts sufficiently appear in this opinion. It is insisted that the trial court erred in his charge upon accomplice testimony as applied to witnesses Cobb and Jordan. The charge complained of as applicable to the facts herein is not harmful. Hunt Watson v. State (No. 6490) 90 Tex. Cr. R. 576, 237 S. W. 298, decided by this court January 18, 1922. The evidence amply showed the guilt of appellant, and the sufficiency of the corroboration of the alleged accomplice.

Unless there be sufficient evidence in this record to cause this court to; believe that there was error on the part of the trial court in refusing to submit to the jury the question as to whether state witness Oats was an accomplice, the case must be affirmed. An examination of the statement of facts shows that witness Cobb bought a pint- of whisky from appellant, paying him therefor $9. ’ The whisky was to be delivered in a certain 'alley later. No one was present when the purchase was made and the money paid to appellant. Afterward Oobb told witness Oats that he was going to get a negro for selling whisky, and that he wanted Oats to go along. Oats went. When appellant came up to them he was nearer to Oats, and Cobb told him to give the package to Oats, which appellant did. The,whisky was in a bottle in a paper sack. Oats handed it to Cobb, and later the two men took a drink out of it. Oats was a deputy sheriff of Miller county, Ark., in which part of the city of Texarkana is located, and testified that what he did in the matter was to'aid Cobb in apprehending ap-' pellaht. There is quite a doubt in our minds as to whether any of the parties were shown to be accomplices in law. They were all officers engaged in an effort to arrest parties illegally selling liquor. While Cobb and Oats took a drink of the liquor, the bottle and its contents were carried to the sheriff’s office and there turned over to the sheriff, and used in evidence against appellant. The taking of a drink of such liquor did not make Oats an accomplice. Howard v. State, 90 Tex. Cr. R. 164, 233 S. W. 847; Venn v. State, 89 Tex. Cr. R. 537, 232 S. W. 822. Officers engaged only in an effort to ferret out and bring to punishment those engaged in the commission of crime would not in all eases be accomplices. However, the evidence in the ease entirely negatives any participation on the part of Oats in the purchase of the liquor, or of any knowledge that such .'liquor had been purchased by Oobb; and we think nothing raises the issue of accomplice as to him, and that the- trial court did not err in refusing to tell the jury that he was an accomplice, and in not submitting such issue to them. Our conclusion in this regard disposes of each of the other contentions of appellant.

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

On Motion for Rehearing.

MORROW, P. J.

The appellant was convicted of the unlawful sale of intoxicating liquor to G. O. Cobb. At the time of the transaction, it was an offense to buy, as well as to sell, intoxicating liquor, and the purchaser was in the attitude of an accomplice witness. See Franklin v. State, 88 Tex. Cr. R. 342, 227 S. W. 486. The law has since been amended so that at this time the purchaser is not an accomplice.

The court instructed the jury that Jordan and Cobb were accomplices, and was requested to instruct the jury to detemine whether Oats was an accomplice. The refusal of this request is made tire basis of, this appeal. Oobb and Jordan arranged to buy whisky from the appellant. Oobb gave the appellant $9 for the whisky which he afterwards received. Fifteen or 20 minutes after the money was given to appellant, according to Cobb’s testimony, Cobb induced Oats to.accompany him to a certain alley. He said:

“I asked Mr. Oats to go with me; I told him I was going to get a.negro for selling whisky, and told him I wanted him to go along, and w.e went up that front street there and went around and came up the alley.”

He waited at a point arranged with the appellant. Oobb further said:

“The whisky was delivered to Mr. Oats; it was not delivered to me in person by the .defendant, but it was delivered to Mr. Barney Oats in my presence. * * * Mr. Oats handed it over to me. * * * Mr. Oats and I then took a drink of it, and I put the bottle in my pocket.”

According to Oobb, the purpose of Oats’ presence was to aid in buying the whisky.

Oats testified that he went with Oobb to a certain alley, and. there appellant handed to the witness Oats a package containing a 16-ounce bottle of whisky. Cobb at the time was about 30 feet away. In our opinion, Oats’ connection with the transaction was such as to require a charge on accomplice testimony permitting the jury to decide whether Oats was an accomplice witness. He was admittedly an actor in the purchase of the whisky. It was through him that the whisky was delivered to Oobb, the alleged purchaser. It is conceded upon the trial that Cobb, who received the whisky from Oats, was an accomplice. Oats received it from the appellant and delivered it to Oobb. It seems that Jordan was-an officer, and that' he had instigated Cobh to induce the appellant to sell him whisky for the purpose of convicting him of the offense. Oats took part in the purchase. The principle of law applicable, we think, is thus stated:

“Where the complicity of the witness is admitted, but the prosecution claims that he was merely a feigned accomplice acting with a view to the detection of the real criminals, it is for the jury to determine whether the witness was an actual or only a feigned accomplice.” See Corpus Juris, vol. 16, p. 678, § 1370; Smith v. State, 89 Tex. Cr. R. 145, 229 S. W. 523.

In our opinion, the court was not justified in refusing to charge the jury, upon the (request of appellant, upon the law of accomplice testimony as relating to the witness Oats. For that reason the judgment should be reversed, and the cause remanded.

The motion' for rehearing is therefore granted, the affirmance set aside,' and the judgment is reversed, and the cause remanded.  