
    CANALES v. STATE.
    (No. 5472.)
    (Court of Criminal Appeals of Texas.
    Oct. 22, 1919.
    Rehearing Denied Nov. 19, 1919.)
    1. Criminal law <&wkey;359 — Evidence; indictment AND CONVICTION 0E STOOD PIGEON IMMATERIAL.
    In a prosecution for the sale of intoxicants in violation of the local option prohibition law, where there were two sales of the same whis-ky, one by defendant to a stool pigeon, and one by the stool pigeon to the officer who employed him, evidence that the stool pigeon had been indicted for making the sale to the officer, and convicted on his plea of guilty, held inadmissible, not being a relevant or material fact on the issues on trial.
    2. Criminal law <&wkey;507(4) — Accomplice testimony in liquor prosecution.
    By Pen.' Code 1911, art. 602, a stool pigeon, who, at the direction of an officer, purchased intoxicating liquor from defendant, who sold it in violation of the local option prohibition law, was not an accomplice of defendant, to-require corroboration of his testimony.
    
      3. Criminal law &wkey;>825(l) — Request por EURTHEB INSTRUCTION.
    If a phase of the argument of opposing counsel, in the opinion of counsel for defendant, required an additional charge from the court on circumstantial evidence, a request for it should have been made.
    Appeal from District Court, Jackson County ; John M. Green, Judge.
    Rafael Canales was convicted of selling intoxicating liquors, and he appeals.
    Affirmed.
    McCrory & Vance, of Edna, and Heidings-felders, of Houston, for appellant.
    E. A. Berry, Asst. A tty. Gen., for the State.
   MORROW, J.

This conviction is for the sale of intoxicating liquors, in violation of the local option prohibition law. On a former appeal this case was reversed. See 206 S. W. 347.

The evidence on the former appeal, so far as it relates to the legal questions, is in substance the same as that herein, save that in this appeal Ramon Sifuentes did not testify. The sale was charged to have been made to him. The facts from the state’s standpoint show: That the witness Yarbrough, an officer, with the object of entrapping violators of the law, gave to Sifuentes a $5 bill, directing; him to use it in purchasing whisky for Yar-brough. That Sifuentes obtained the whis-ky from, the appellant, and delivered it to Yarbrough, handing him at' the same time $3.25 in change. The theory of the appellant, supported by his evidence, was that Sifuentes had left whisky at the home of appellant, and that on the occasion in question, Sifuentes requested the appellant to hand him one of the bottles of whisky, and also requested him to change a $5 bill. That appellant did these things, but was not interested in the whisky, and made no sale of it.

It appears from the bills of exception that Ramon Sifuentes was also indicted and convicted on the plea of guilty of unlawfully selling the same whisky, this prosecution growing out of his transaction with Yar-brough; the indictment against him charging that he had made a sale of liquor to the witness Yarbrough.

The appellant insists that the trial court committed error in refusing to permit proof of these facts. We are unable to concur in this view. The ruling of the trial court was based upon the view that there were two sales of the same whisky — one by appellant to Sifuentes, and one by Sifuentes to Yarbrough — and the fact that Sifuentes had been indicted for making the sale to Yarbrough, and had been convicted upon the plea of guilty, was not a relevant fact or a material one to the issues which were on trial. It appears from other evidence that Sifuentes had deposited some bottles of whisky at the home of appellant, and it is claimed by appellant that he was not aware of the contents of the package containing them which Sifuentes left. This was a controverted issue. It also appears from other evidence that Yarbrough, for the purpose of founding a prosecution upon information obtained, inquired of Sifuentes whether he could obtain whisky, and receiving an affirmative answer, gave him the money with which to buy it; 'that Sifuentes went to the appellant’s house and obtained the whisky from the appellant; that Yarbrough watched the transaction, and he testified ■ to circumstances going to show, and which were regarded by the jury as showing, that appellant received pay for the whisky on its delivery by him. The appellant, predicating upon these facts, sought to have the jury instructed that Yarbrough was an accomplice, and that the rule of accomplice testimony requiring corroboration should be applied.

The statute (article 602, Penal Code) provides:

“The fact that a person purchases intoxicating liquor from one who sells it in violation of the provisions of this chapter shall not constitute such person an accomplice.” >

This refers to the local option law. Its construction by this court accords with the trial court’s ruling in refusing the instruction. Terry v. State, 46 Tex. Cr. R. 76, 79 S. W. 320; Looper v. State, 74 Tex. Cr. E. 144, 167 S. W. 342.

In the charge on circumstantial evidence, the court failed to say that reliance was upon that character of evidence alone. No exception to the court’s charge is reserved, and except in the particular named it is not subject to criticism'. In one of his bills of exceptions the appellant complains that the court refused to give the special charge prepared by him on circumstantial evidence; but a comparison with the court’s main charge discloses that the language Used therein and that used in the special charge are identical. Appended to the statement of facts is an agreement that in the argument of the case a conflict of views of the opposing counsels developed upon the effect of the charge. No exception was reserved, so far as the record discloses, and the court is not shown to have been called upon in any manner to settle the controversy. If this phase of the argument, in the opinion of the counsel for the appellant, required an additional charge from the court, a request for it should have been made.

The evidence, we think, is sufficient to support the verdict, and there is disclosed by the record no error authorizing a reversal of the judgment. It is accordingly affirmed. 
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