
    BAGLEY v. STATE.
    (No. 3725.)
    (Court of Criminal Appeals of Texas.
    Oct. 20, 1915.
    Rehearing Denied Nov. 17, 1915.)
    1. Criminal Law <&wkey;595 — Continuance — Absence oe Witnesses — Materiality oe Testimony.
    On a trial for selling intoxicating liquor in prohibition territory, one witness testified that he purchased a bottle of whisky from defendant about 9:30 a. m., and another, after dark, about 7:30 in the evening. Another witness claimed to have purchased whisky about dark. The court’s qualification of a bill of exceptions indicated that the sales were made on February 27th. Eeld, that the refusal of a continuance because of the absence of witnesses who would have testified to defendant’s whereabouts between 10 a. m. and 5:30 p. m., on February 26th, was not error, as their testimony would not have been material to any issue in the case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1311, 1323-1327; Dee. Dig. &wkey;595J
    2. Criminal Law <&wkey;780 — Instructions — Testimony oe Accomplices.
    If, on a criminal trial, the evidence suggested that witnesses for the state were accomplices, the court should have charged the provisions of Code Ci\ Proe. 1911, art. 801, providing that a conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and that the corroboration is not sufficient if it merely shows the commission of the offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1859-1863; Dec. Dig. 4&wkey; 780.]
    3. Criminal Law <&wkey;507 — Instructions — Testimony oe “Accomplice.”
    Where a sheriff agreed with R. to pay him for each bootlegger he might aid him in catching, and, pursuant to such agreement, R. purchased whisky from defendant, he and the sheriff were not “accomplices” within the rule governing accomplices’ testimony, in view of Pen. Code 1911, art. 602, providing that the fact that a person purchases intoxicating liquor from one who sells it in violation of the provisions of that chapter shall not constitute such person an accpmpliee.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1082-1096; Dec. Dig. <&wkey;> 507.
    For other definitions, see Words and Phrases, First and Second Series, Accomplice.]
    4. Intoxicating Liquors <&wkey;141 — Criminal Oeeenses — Pursuing Business oe Selling Liquor.
    That defendant may have been in some other business would not prevent him from pursuing the occupation of selling liquor to all who applied to him.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 151; Dec. Dig. &wkey;>141.]
    
      Appeal from District Court, Harrison County; P. O. Beard, Special Judge.
    Tom Bagley was convicted of pursuing the business of selling intoxicating liquor in prohibition territory, and he appeals.
    Affirmed.
    Lane & Lane, of Marshall, for appellant. O. C. McDonald, Asst. Atty. -Gen., for the State.
   HARPER, J.

Appellant was convicted of pursuing the business of selling intoxicating liquor in prohibition territory, and his punishment assessed at three years’ confinement in the state penitentiary.

A motion in arrest of judgment was filed, insisting the indictment alleged no offense against the laws of this state. In the brief filed by appellant’s counsel, this question is not presented. We judge that upon further examination of the indictment appellant’s counsel ascertained it was in language frequently approved by this court, and that this court had held that such indictment charged the offense alleged.

Appellant insists that the court erred in overruling his application for a continuance on account of the absence of the witnesses A. L. Hayden and Wirt Hope. By these witnesses he states he expected to prove that each of them were with appellant on the 26th day of February from 10 o’clock in the morning until 5:30 o’clock in the afternoon, and during that time he did not sell any whisky to Jess Richardson nor O. W. Blueher. In approving the bill of exceptions, the court states:

“The evidence shows that neither Wirt Hope nor A. L. Hayden were in the city of Marshall, Harrison county, on the 27th day of February, and knew nothing of .the sales of liquor to either Joss Richardson or O. W. Blueher on the 27th.”

If appellant expected to prove his whereabouts on the 26th and the evidence on the trial shows that the sales, if any made, were made on the 27th, and not the 26th, the testimony would be material to no issue in the case. Again-, the witness Richardson testified he purchased one bottle of the whisky about 9:30 in the morning, and the other after dark, about 7:30 in the evening. Blue-her testified he purchased the whisky he cttaimed to have bought about dark. So if Hayden and Hope would testify they were with appellant from 10 o’clock to 5:30 and he sold Richardson and Blueher no whisky during that time, it would in no sense dispute the state’s testimony, nor have any tendency to show it was not true. The record disclosing the testimony would be material to no issue in the case, the court did not err in overruling the motion for a new trial on this ground.

This case was tried the 14th day of last April, and no exceptions were reserved to the charge of the court as given, although there were several special charges requested. Special charge No. 1 seems to have been embodied in and made a part of the court’s main charge; at least, it is fully covered by the court’s charge. The other special charges requested relate to accomplice testimony, and requests the court to instruct the jury that Jess Richardson, O. W. Blueher, and Sheriff Sanders were accomplices, under their testimony, and requested the court to apply the law of accomplices’ testimony to their evidence. Appellant refers to article 801 of the Code of Criminal Procedure. If the evidence suggested these men were accomplices, then, of course, the provisions of article 801 ought to have been given in charge to the jury, but article 602 of the 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.”

Richardson testified he purchased one bottle of whisky from appellant on the 27th about 9:30 in the morning, and purchased another bottle on the same day about 7:30 in the evening. He testified the sheriff had agreed to pay him $25 for each bootlegger he might detect, provided the sheriff was placed in such position he might see the sale made. Sheriff Sanders testified he made that agreement and saw appellant make the sales to Richardson. Appellant insists that, notwithstanding the above provision of the Code, the fact that Sanders had agreed to pay Richardson $25 for each bootlegger he might aid him in catching would render them accomplices, bringing them both within the rule governing accomplices’ testimony. This was decided adversely to appellant in Walker v. State, 72 S. W. 401, soon after the adoption of article 602. In that case, this court, speaking through Judge Davidson, held:

“Alexander was the purchaser, and Hightower was president of an anti-saloon league, who employed Alexander to ferret out violations of the local option law; and it may be conceded that Alexander induced appellant to sell him the whisky for the purpose of instituting criminal proceedings against him. * * * It is a sufficient answer to all these questions to say that, under the facts, * * * neither of the witnesses is an accomplice” — citing the' above provision of the Oode.

The rule as thus announced has been adhered to. See Branch’s Criminal Law, § 554.

Appellant at the same time may have been a cattle buyer, but this would not prevent him from also pursuing the occupation of selling liquor to all who aijplied to him, and this he seems to have done. Fitch v. State, 58 Tex. Cr. R. 366, 127 S. W. 1046.

Judgment affirmed. 
      <S&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     