
    HOLLIS v. STATE.
    (No. 8660.)
    (Court of Criminal Appeals of Texas.
    April 29, 1925.)
    Criminal law &wkey;3507(l) — Witness’ delivery of whisky for accused held to make him accomplice.
    Witness’ delivery of whisky for accused, on the' latter’s promise’ “to make it all right,” held to make him an accomplice within Acts 1st Called Sess. 37th Leg. (1921), c. 61 (Vernon’s Ann. Pen. Code Supp. 1922, art. 588% et seq.).
    <grr»For other case3 see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from Criminal District Court, Travis County; James R. Hamilton, Judge.
    John Hollis was convicted of unlawfully delivering intoxicating liquor, and he appeals.
    Reversed and remanded.
    Warren W. Moore and Fred Moore, both of Austin, for appellant.
    Tom Garrard, State’s Atty'., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The conviction) is for the unlawful delivery of intoxicating liquor to John C. Biles; punishment fixed at confinement in the penitentiary for a period of two years.

It appears from the testimony of Biles that the appellant brought to the house of the witness seven quart bottles of whisky, and that, at the appellant’s request, the witness delivered six of these bottles to Over-ton. Appellant stated at the time that “he would make it all right.” The other quart was retained by Biles after he and the appellant had drunk part of it. The date of this transaction was about the 26th of December. Overton, who was introduced, as a witness -for the state, denied receiving any whisky on the 26th of December. He said that on a previous occasion he had some, dealings with the appellant with reference-to some intoxicating liquor. Appellant tes-He also tified and denied the transaction, presented the defense of alibi.

The point is made against the judgment that the state relied alone upon the testimony of an accomplice. The pertinent inquiry is: Was the connection of Biles with the criminal enterprise of the appellant such as rendered him an accomplice witness within the meaning of the law? As answering this inquiry in the affirmative, appellant cites Chandler v. State, 89 Tex. Cr. R. 599, 232 S. W. 337, Newton v State, 95 Tex. Cr. R. 261, 253 S. W. 284, Williams v. State, 82 Tex. Cr. R. 215, 199 S. W. 296, Williams v State (Tex. Cr. App.) 265 S. W. 166, Laughlin v. State, 97 Tex. Cr. R. 370, 260 S. W. 865, and Dawson v. State, 97 Tex. Cr. R. 408, 261 S. W. 1050, besides numerous older cases. It occurs to the writer that the testimony of Biles reveals that he was a means adopted by the appellant to complete the sale of the whisky to Overton, and that Biles, in undertaking to accomplish this unlawful purpose by receiving the whisky, so connected himself with the criminal enterprise as to characterize him as an accomplice witness. By his agreement upon the promise of the appellant that “he .would make it all right,” and the reception by Biles of the quart of whisky which was left for him, he became a partner in the criminal transaction of the delivery of the whisky. The transaction is not included in the exception to the accomplice statute found in chapter 61, Acts of 37th Leg. 1st Called Sess. (Vernon’s Ann. Pen. Code Supp. 1922, art. SSS^et seq.). Overton denied the receipt of the whisky, but said that on a former occasion he had some dealings with the appellant about whisky.

The record is bare, so far as the writer can judge, of any corroborative fact tending to connect the appellant with the transaction as detailed by Biles, upon which the prosecution is founded.

We note that, while considered in connection with the charge, the verdict in this case found the appellant guilty of delivering whisky, he is sentenced for the unlawful sale. In view of the reversal of the judgment, however, which must be ordered, this error against the state is unimportant.

The judgment is reversed and the cause remanded.  