
    CHANDLER v. STATE.
    (No. 6257.)
    (Court of Criminal Appeals of Texas.
    May 11, 1921.)
    I.Criminal law <&wkey;>507(I) — “Accomplice” as applied to witness includes all persons connected with the offense by unlawful act or omission.
    As applied to a witness for the state, the term “accomplice” includes all persons connect-
    ed with offense by unlawful act or omission transpiring either before, at the time of, or after the commission of the offense, and whether such witness was present or participated in the crime or not.
    Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Accomplice.]
    2. Criminal law <&wkey;742(2)-Whether witness was accomplice or innocently connected with offense a jury question.
    Innocent connection with the offense involved, while it will not render the witness an accomplice requiring corroboration, will often raise the issue of fact as to the character of his participation, and, where the issue is doubtful, its solution is for the jury under proper instruction.
    3. Criminal law <&wkey;742(2) — Whether witness’ relation to case such as required his corroboration as accomplice a question of fact.
    In a prosecution for the unlawful sale of intoxicating liquor, whether the -relation to the case of a witness who was the companion of the purchaser of whisky from defendant was such as required his corroboration as an accomplice held! a question of fact for the jury in view of the evidence.
    4. Criminal law <&wkey;507(I)— Purchaser of whis-ky from defendant bootlegger an accomplice witness.
    One who purchased whisky from defendant charged with its unlawful sale was an accomplice witness as matter of law, and required corroboration.
    5. Criminal law <&wkey;780(2) — Error in refusing requested charge defining accomplice, etc., held to require reversal.
    In a prosecution for the unlawful sale of intoxicating liquor, the testimony of the purchaser, an accomplice, being essential to sustain the state’s case, error in refusing defendant’s requested charge defining an accomplice and instructing that the purchaser was such, and that his testimony uncorroborated could not form the basis of conviction, requires reversal of judgment of conviction.
    Appeal from District Court,' Kaufman County; Joel R. Bond, Judge.
    Clyde Chandler was convicted of the unlawful sale of intoxicating liquors, and he appeals.
    Judgment reversed, and cause remanded.
    Wynne & Wynne, of Kaufman, Miller & Miller, of Athens, and Huffmaster & Huff-master, of Kaufman, for appellant.
    R. H. Hamilton, Asst. Atty. Gen,, for the State.
   MORROW, P. J.

Conviction is for the unlawful sale of intoxicating liquors. Punishment fixed at confinement in the penitentiary for one year.

The testimony is identical with that given in the case of Clyde Chandler v. State (No. 6255), 232 S. W. 337, in which case the appél-lant was charged with the possession of intoxicating liquors.

The state relied upon the testimony of Holley, who declared that he had purchased whisky from the appellant, and upon the testimony of his companion, Jenkins, who testified to facts which showed such connection with the transaction as was sufficient to raise the issue of fact as to whether he was or was not an accomplice witness within the meaning of the statute. See article 801, Code of Crim. Procedure.

“The term ‘accomplice’ when applied to a witness who testifies in behalf of the state has a distinct and different meaning from its technical definition in the Penal Code.” Branch’s Ann. Tex. Penal Code, § 702.

As applied to a witness, the term “includes all persons connected with the offense by unlawful act or omission, transpiring either before, at the time of, or after the commission of the offense, and whether such witness was present or participating in the crime or not.” Irvin v. State, 1 Tex. App. 303, and other cases cited in Branch’s Ann. Tex. Penal Code, 702, subd. 1. Innocent connection with the offense, while it will not render the witness an accomplice requiring corroboration, will often raise the issue of fact as to the character of his participation. Robbins v. State, 33 Tex. Cr. R. 573, 28 S. W. 473. And, where the issue is a doubtful one, its solution is for the jury under proper instruction. McElroy v. State, 53 Tex. Cr. R. 59, 111 S. W. 948. In the instant case whether Jenkin’s relation to the case was such as required corroboration was a question of fact. Holley, however, was an accomplice witness, as a matter of law.

An instruction was requested defining an accomplice and instructing the jury that Holley was an accomplice, and that his testimony uncorroborated could not form the basis of conviction. His testimony being essential to sustain the state’s case, the error in refusing this requested charge requires a reversal of the judgment. The Assistant Attorney General concedes that this result must follow.

The learned trial judge bases his refusal to give the instruction upon the case of Huggins v. State, 85 Tex. Cr. R. 205, 210 S. W. 804. The court apparently misinterpreted the construction of the statute made in the opinion in that case. Moreover, the facts were different. The witnesses were not, like Holley, accomplices as a matter of law, but were, at most, like Jenkins, in a position in which the jury might have found them to be within the statute requiring corroboration. No request was made for a charge upon' accomplice testimony. There was other testimony besides that of the accomplices. From the opinion we take the following quotation:

“No request for the submission of the questions whether the rule of accomplice testimony governed the state’s witnesses having been made, their status would not be available to appellant upon appeal, unless they came within the accomplice rule as a matter of law and there was not sufficient corroboration. We do not think they were accomplices as a matter of law. Sanchez v. State, 48 Tex. Cr. R. 591, 90 S. W. 641, 122 Am. St. Rep. 772; Wright v. State, 7 Tex. App. 574, 32 Am. Rep. 599; Allison v. State, 14 Tex. App. 122; Tones v. State, 48 Tex. Cr. R. 368, 88 S. W. 217, 1 L. R. A. (N. S.) 1024, 122 Am. St. Rep. 759. If the contrary were true, however, we think the circumstances detailed in appellant’s testimony afforded sufficient corroboration.”

Because of the error in refusing the requested charge upon the law of accomplice testimony, the judgment is reversed, and the cause remanded. 
      —.Pnr other eases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes
     