
    PIRTLE v. STATE.
    (No. 8255.)
    (Court of Criminal Appeals of Texas.
    March 12, 1924.
    Rehearing Denied May 21, 1924 )
    Criminal law &wkey;s780(3) — Charge as to accomplice testimony held sufficient.
    Charge that, if jury believed certain fact from evidence, testimony of state’s witness was accomplice, and they should acquit, held sufficient charge on accomplice testimony, without stating necessity of corroboration of accomplice testimony; there being no other state witness. —
    <@x^>For other cases see same topic and KEY-NtfMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Jones County; W. R. Chapman, Judge.
    C. J. Pirtle was convicted of unlawful transportation of intoxicating liquor, and appeals.
    Affirmed.
    Lon A. Brooks, of Anson, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is the unlawful transportation of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of two years.

The' state witness Duncan, a resident of the town of Stamford, in Jones county, was engaged in the mercantile business. According to his testimony he, on the 15th day of March, purchased from the appellant a quart of corn whisky, and paid therefor the sum of $5.

Appellant’s testimony was in substance this: He had agreed to furnish the witness Duncan with five or ten gallons of whisky at a time, once a month, so that he might supply a “bunch” of friends. According to the agreement between them appellant was to receive $8 per gallon, and Duncan was to sell it'for $16 per gallon,,and then deliver to appellant one-half of the profit. Under this contract appellant, according to his testimony, had made three trips to Duncan’s store, and delivered a total of six gallons of whisky, and Duncan had complied with the terms of the agreement, namely, to pay $8 per gallon on delivery, and $4 profit after the sales took place. Appellant denied the sale of the quart of whisky for ’$5 and Duncan denied the transaction or agreement as detailed by the appellant.

The only question raised upon this appeal is the complaint of the refusal of the court to charge the jury upon the law of accomplice testimony as applied to the witness Duncan. The court did charge the jury thus:

“If you believe from the evidence that the defendant and . J. E. Dupean, about the first week in February, 1923,' entered into an agreement by which the defendant was to ' furnish whisky to J. E. Duncan, and that J. E. Duncan was to dispose of said whisky, and that defendant and J. E. Duncan would divide profits, then you are charged that, if such agreement was entered into, then the testimony 'of J. .E. Duncan as to the delivery of any whisky to him by the defendant under such agreement, if any, would be accomplice testimony, and in this eon-riection you are charged that if the defendant delivered whisky to J..E. Duncan, but same was delivered to him, only under said agreement, if any, you will acquit the defendant."

This paragraph is deemed adequate to protect the interest of the appellant.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

It is insisted that the charge quoted in the original opinion did not suffice for the customary charge on accomplice testimony. The alleged purchaser (the only state’s witness) denied any such agreement relative to whisky as was testified to by appellant. There was no corroboration of the state’s witness as to the sale. The learned trial judge realized that, if appellant’s version of the matter was true, the alleged purchaser was in fact criminally connected with the seller, and therefore an accomplice witness, and there being no corroboration the state’s case must fall. This is precisely what he told the jury. When the record is devoid of corroborating evidence why tell the jury there must be corroboration before conviction could be had? Why not tell them if they find the only state’s witness to be an accomplice they must acquit?

The motion for rehearing is overruled.  