
    BAILEY v. STATE.
    (No. 8822.)
    (Court of Criminal Appeals of Texas.
    April 1, 1925.
    Rehearing Denied May 6, 1925.)
    I. Criminal law <&wkey;510 — Legislature may make exception to rule prohibiting conviction of accused on uncorroborated testimony of accomplice.
    The Legislature is empowered to make exception to rule announced in Code Cr. Proc. 1911, art. 801, prohibiting conviction of accused on uncorroborated testimony of accomplice.
    2. Criminal law &wkey;>510 — Statute pertaining to liquor offenses held to authorize conviction upon uncorroborated testimony of coprincipal.
    Acts 1st Called Sess. 37th Leg. (1921) c. 61, § B, adding section 2c to Acts 2d Called Sess. 36th Leg. (1919), c. 78 (Vernon’s Ann. Pen. Code Supp. 1922, art. SS^^aS), held to authorize conviction of accused for transporting or possessing intoxicating liquors for sale, upon the uncorroborated testimony of a co-principal, despite Code Cr. Proc. 1911, art. 801.
    3. Constitutional law &wkey;>70(3) — Wisdom of permitting conviction upon uncorroborated evidence of coprincipal held not for Court of Criminal Appeals.
    The- wisdom of permitting, conviction for possessing or transporting liquor upon uncorroborated evidence of coprincipal as is done by Acts 1st Called Sess. 37th Leg. (1921), e. 61, § B, adding section 2c to Acts 2d Called Sess. 36th Leg. (1919), c. 78 (Vernon’s Ann. Pen. Code Supp. 1922, art. 588%a3), held question for Legislature, and not one for Court of Criminal Appeals.
    (g^AFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Young County; H. R. Wilson, Judge.
    H. E. Bailey was Convicted of possession of intoxicating liquor for purpose of sale, and he appeals.
    Affirmed.
    Binkley & Binkley, of Graham, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   DAWKINS, J.

Conviction is for possession of intoxicating liquor for the purpose of sale. Punishment, two years in. the penitentiary. '

Only two witnesses were used by the state. Appellant did not testify and no testimony was offered by the defense. Chauncey Smith testified that he got into a car with appellant and one Cressell in the town of Graham and told appellant he wanted some whisky, to which appellant replied, “All rightthat they went in appellant’s car three or four miles from town where appellant went into a pasture and after “scratching” around in the bushes revealed four quart bottles of whisky; that from one bottle all three took a drink; that appellant placed witness’ bot-tie and another one in the back part of the car; that the bottle out of which they had taken the drink and one other bottle were left in the pasture; that the three of them then came back towards town to a point near ,the stock pens; that here witness got out of the car for the purpose of hiding his quart in a small pasture near the road he would travel going home from town; and at appellant’s request took the other quart to hide it also; that as witness walked through the pasture with the two bottles appellant drove around the road and reached a point on the other road about the time witness came out; that witness saw his son, who had gone to town with him, coming in his (witness’) car, and that he then went back into the small pasture to get his quart. Without further request from appellant he brought the other quart out to the road also; that just as he put one bottle in his own ear sheriff Cooper drove up and inquired whose whisky it was; that witness told him it was appellant’s; that appellant was near and made no reply to this statement. The sheriff testified that as he drove up he saw appellant, Cressell, and Smith inside the pasture fence. He says: ■

“When I drove down there I drove up within 20 or 30 feet of them, and they had a sack with some whisky in it and taken one of the bottles out and give it to Mr. Smith, and he put one bottle in his car and about that time they said, ‘Look out, here’s the law,’ and they dropped the sack and run. Mr. Bailey run about 20 or 30 feet. I found three bottles of whisky there, two of them on the outside and one on the inside.”

Appellant requested the court to charge that witness Smith was an accomplice. This was refused.

It is doubtful if the evidence shows such relation of Smith towards the two bottles of liquor left in the pasture as would characterize him' an accomplice witness as to them under the provision of article 801, C. C. P. prohibiting a conviction on the uncorroborated evidence of an accomplice. On his trip with appellant, Smith only discovered the presence of said two bottles of whis-ky at the point where the other was obtained. It was left there by appellant and Smith had no connection with it whatever. But we do not déem it necessary to base the opinion upon the incident relative to that whis-ky alone. It may be conceded that under the general provisions of article 801, supra, Smith’s-connection with the two bottles of whisky which he says were brought away would characterize him as an accomplice witness as to them if it were not for section 2c, c. 61, 1st C. S. 37th Leg., 1921 (Vernon’s Ann. Pen. Code Supp. 1922, art. 588%a3). Under the common law no presumption existed against the credibility of the evidence of an accomplice and in the absence of a statute to tbe contrary a conviction could be bad on bis evidence alone. Tbis is true in tbe United States courts today and in many of tbe other states of tbe Union. [See. section 129, Underbill’s Crim. Ev. (3d Ed.)] It is only by virtue of article 801, O. C. P. written into our law by tbe Legislature that prevents tbe conviction of one accused of crime upon tbe uncorroborated testimony of an accomplice. Having written sucb article into tbe law, tbe Legislature also bas authority to take out all or any part of it, or to make sucb rule inapplicable to certain designated offenses. By chapter 61, 1st O. S. 37th Leg., tbe manufacture, sale, transportation,, and possession for the purpose of sale, of intoxicating liquor were, among many other specified acts, denounced as crimes. It must be presumed that tbe Legislature knew at tbe time of tbe passage of sucb law that parties might be co-principals in tbe possession of such liquor for tbe purpose of sale or in tbe transportation of it, as well as coprincipals in other offenses denounced in that chapter. Notwithstanding sucb knowledge on tbe part of tbe Legislature, it wrote into tbe law as section 2c tbe following:

“Upon a trial for a violation of any of tbe provisions of tbis chapter, the purchaser, transporter, or possessor of any of the liquors prohibited herein shall not be held in law or in fact to be an accomplice, when a witness in any such trial.” Yernon’s Ann. Pen. Code Supp. 1922, art. 5883,4a 3.

Tbis announcement by tbe Legislature was tantamount to withdrawing in tbe instances specified tbe application of article 801, 0. O. P. so that, in tbe prosecution of any of the offenses designated under said chapter 61, a conviction of tbe accused could be bad upon tbe uncorroborated testimony of a purchaser, transporter, or possessor. Tbe terms of sucb provision is broad enough to cover a coprin-cipal in tbe transportation of intoxicating liquor, or a coprineipal in tbe possession of such liquor for tbe purpose of sale. It is not for tbis court to say whether or not it was wise for tbe Legislature to permit tbe conviction of a transporter or possessor of intoxicating liquor upon tbe uncorroborated testimony of bis eotransporter or copossessor, but only to determine whether tbe Legislature did so announce tbe law. We bold that section 2c of chapter 61, supra, bas made inapplicable tbe operation of article 801, O. C. P. in prosecutions for tbe violation of any of the provisions of said chapter 61 where tbe purchaser, transporter, or possessor is used as a witness, and that it bas authorized tbe conviction of an accused in sucb cases upon tbe uncorroborated testimony of bis coprincipal in transporting or possessing for purposes of sale sucb intoxicating liquor. It follows that tbe contention of appellant that tbe court should have charged Smith to have been an accomplice, or have submitted that issue to the jury, is not tenable.

Tbe judgment is affirmed.

On Motion for Rehearing.

Appellant filed a motion for rehearing. He now comes with a personal request supported by bis affidavit asking permission to withdraw bis motion for rehearing. Tbe request is granted, and the mandate will issue in accord with oiir original opinion.  