
    GARDNER v. STATE.
    (No. 5925.)
    (Court of Criminal Appeals of Texas.
    April 13, 1921.)
    f. Criminal law <@=»780(2) — Charge on accomplice testimony should be given with reference to purchaser of liquors.
    On a trial for the unlawful sale of intoxicating liquors, a charge on the law of accomplice testimony with reference to the purchasers testifying to the purchase should be given.
    2. Intoxicating liquors <@==>239(5)— Court should instruct to acquit if liquor not intoxicating when sold.
    On a trial for selling intoxicating liquors, wh^ere the beverage sold was subsequently analyzed and found to contain a prohibited per cent, of alcohol, but defendant claimed it was pot intoxicating when sold by him, the court, if requested, should charge that the jury should acquit if the liquor did not contain the prohibited percentage of alcohol at the time of the sale.
    Appeal from District Court, Cass County; H. F. O’Neal, Judge.
    Jamie Gardner was convicted of the unlawful sale of intoxicating liquors, and he appeals.
    Reversed and remanded.
    O’Neal & Allday, of Atlanta, and Bartlett & Patman, of Linden, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Tlie appellant was convicted of the unlawful sale of intoxicating liquors to Hubbard Kirkpatrick.

It appears that the state proved by Hubbard Kirkpatrick and Turner Stewart that they purchased from appellant a gallon of “Choctaw beer.” A pint of the liquid was delivered to the father of Turner Stewart, by him to his son, by him in turn to a druggist, by the druggist to his clerk, who mailed it to Dr. Hoffman of the State Health Department at Austin, and was analyzed by a chemist in his department, and found to contain a prohibited per cent, of alcohol.

It was claimed by the appellant that the liquor which was obtained from him was not intoxicating.

Appellant requested the court to instruct the jury on the law of accomplice testimony with reference to the purchasers, who testified that they purchased the liquor and paid the appellant for it. The refusal of the court to give such instructions was error. Franklin v. State, 227 S. W. 486.

We think the evidence touching the identity of the liquor analyzed with that purchased from the appellant was sufficient logo to the jury upon the issue of the intoxicating qualities of the fluid.

A special charge was requested to the effect that if the jury found that the liquor was not intoxicating when sold, but that its-subsequently becoming so would not authorize a conviction, was upon an issue which, so far as we are able to discern, is not raised by the evidence. In view of another trial, however, we express the opinion that, if requested to do so, the court should instruct the jury that if the liquor sold was at the time not an intoxicant — that is, it did not contain the prohibited percentage of alcohol —an acquittal should result.

Because of the error pointed out, the judgment is reversed and the cause remanded. 
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