
    THOMAS v. STATE.
    (No. 6151.)
    (Court of Criminal Appeals of Texas.
    March 9, 1921.
    Rehearing Granted March 30, 1921.)
    I. Criminal law <&wkey;l 144(1/2)—Defendant presumed in jail, where record fails to show recognizance.
    An appeal in a felony ease will not be dismissed, because the record shows neither a recognizance nor the fact that defendant is in jail; the presumption being, when the record does not contain a recognizance and bail bond, that defendant is in jail.
    2. Criminal law <&wkey;l086(!3)—Appeal dismissed, when sentence not in record.
    An appeal in a criminal case will be dismissed, when the record does not contain any sentence.
    On Motion for Rehearing.
    3. Criminal law <&wkey;507(l)—Purchaser of liquor illegally sold is “accomplice.”
    On a trial for selling intoxicating liquor, the purchaser of the liquor is an “accomplice,” and his testimony will not support a conviction.
    [Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Accomplice.]-
    Appeal from District Court, Kaufman County; Joel R. Bond, Judge.
    James Thomas was convicted of selling Intoxicating liquor, and he appeals.
    Reversed and remanded on rehearing.
    Wynne & Wynne, of Kaufman, for appellant.
    C. M. Cureton, Atty. Gen., and C. L. Stone, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in this case in the district court of Kaufman county of the offense of selling intoxicating liquor under what is known as the Dean Law (Acts 2d Called Session, 36th Legislature, p. 228), and his punishment fixed at confinement in the penitentiary for a term of one year.

The state has filed a motion asking for the dismissal of this case because the record shows neither a recognizance nor the fact that appellant is in jail. The authorities cited by the state in support of this motion will be found upon examination to be misdemeanor cases, and we understand the rule contended for by the state to apply only to misdemeanor cases. On appeal in a felony case when the record does not contain a recognizance and bail bond, the presumption of this court is, unless the opposite is made to affirmatively appear, that the appellant is in jail. That portion of the motion of the state is therefor denied.

The state also moves to dismiss this appeal because the record does not contain a sentence. An examination of the record shows this ground of the motion to be well taken.

For the reason that the record contains no sentence, the appeal will be dismissed.

On Motion for Rehearing.

At a former, day this case was dismissed because the record contained no sentence. This defect has been corrected, and the cause is now considered on its merits.

But two witnesses testified. Green Shannon testified that about the 1st of September he and Jim Holland went to the house of appellant and bought a pint of corn whisky. Crackshot Griffin testified that he took Green Shannon. and Jim Holland out to a point on the pike road between Elmo and Cobb Switch one night about the 1st of September, and that they got out of the car and walked off a piece, and that he did not know where they went, and when they came back they had some whisky. For the reason that the witness Shannon is an accomplice, being the purchaser of liquor and himself equally guilty with the seller, we are compelled to hold the evidence insufficient to support the verdict. Westbrook v. State, 227 S. W. 1104, No. 5959, decided at this term.

The judgment is reversed, and the cause remanded. 
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