
    NEAL v. STATE.
    (Court of Criminal Appeals of Texas.
    June 4, 1913.)
    1. Criminal Law (§ 507) — Accomplice — Purchaser oe Liquor unlawfully Sold.
    Under Pen. Code 1911, art. 602, expressly declaring that the purchaser of intoxicating liquor sold in violation of law is not an accomplice, it was not error for the court to refuse either to charge that such a purchaser was an accomplice, or to submit that question to the jury.
    TEd. Note. — For other- cases Law, Cent. Dig. §§ 1082-1096 507.] see Criminal Dec. Dig. §
    
      2. Ceiminál Law (§§ 763, 764) — Trial—Instructions — Weight of Evidence.
    In a prosecution for the illegal sale of intoxicating liquors, where the prosecuting witness testified that he paid for it with a marked bill subsequently found on the defendant’s person, and the latter claimed that he had changed the bill for the witness, it was not error for the court, in the absence of a request, not to charge as to the possession of the bill, since such a charge would have been upon the weight of evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752, 1768, 1770; Dec. Dig. §§ 763, 764.]
    Appeal from District Court, Bowie County; H. F. O’Neal, Judge.
    Giles Neal was convicted of illegally selling intoxicating liquors, and he appeals.
    Affirmed.
    Graham & Smitha, of Texarkana, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

Appellant was convicted for illegally selling intoxicating liquors in Bowie county after prohibition had been properly carried and put in force therein. The election was shown to have been held and prohibition put in force in 1910. The illegal sale was alleged to have been made on January 14, 1913. The appellant was convicted and his penalty fixed at two years in the penitentiary. The evidence is amply sufficient to clearly establish appellant’s guilt.

One contention by appellant is that Charlie Williams, to whom the illegal sale was charged to have been made, and who testified to the purchase of intoxicating liquor from appellant, was an accomplice, and the court erred in not so -charging. Our statute (P. C. art. 602) expressly enacts that such purchaser shall not be an accomplice. The decisions, and there are a large number of them, follow the statute, and expressly so hold. The court did not err in not charging that the purchaser, Williams, was an accomplice, or submitting to the jury whether or not he was.

The evidence by the state was that after Williams, the prosecuting witness, saw appellant and learned he could buy whisky from him, he- told appellant he did not then have the money to pay for it, but would go get it. The witness thereupon went to the constable who furnished him a $1 currency bill, he and another so marking the bill that it could be clearly identified, and gave it to the witness, who then went and bought the, whisky from appellant, paying this $1 bill therefor. Immediately after the sale the officers took from the witness the bottle of whisky so bought from appellant, and at once saw appellant and took from him the said $1 bill. Appellant positively denied making a sale of whisky to the witness, and claimed that the way he came in possession of the said $1 bill was that the witness Williams had him, appellant, to give him change therefor. Appellant also had other witnesses who testified substantially as he did. The state had other evidence strongly corroborating Williams in. his testimony. Under these circumstances appellant claims that the court erred in not submitting affirmatively his defense. He made no objection to the charge of the court at the time, and requested no special charge on the subject. The question is raised by motion for new trial only.

The fact that appellant attempted to show how he came in possession of the said $1 bill, as explained above, was no special defense to the state’s ease against him. His defense was that he did not make the sale and so testified. 1-Iis explanation of how he came in possession of the $1 bill is merely a matter of evidence and was no special defense. The court in submitting the case to the jury required them to believe the facts beyond a reasonable doubt necessary under the law to convict him before they could do so and gave in his favor the reasonable doubt charge in accordance with the statute, and that the burden of proof was on the state. The court did not err in not charging anything about the possession of said $1 bill. Any charge on the subject would clearly have been upon the weight of the evidence.

There being no error, the judgment will be affirmed.  