
    CHANDLER v. STATE.
    (No. 6255.)
    (Court of Criminal Appeals of Texas.
    May 11, 1921.
    Rehearing Denied June 22, 1921.)
    1. Criminal iaw <&wkey;507(l) — Statens witness held an accomplice necessary to be corroborated.
    In a prosecution for the unlawful possession of intoxicating liquor, a state’s witness who went to the home of a third person, saw defendant and another, and discussed the purchase of a quart of whisky, etc., was an accomplice witness as a matter of law, and under Code Cr. Proc. 1911, art. 801. his uncorroborated testimony would not support conviction.
    2. Criminal law <&wkey;742‘(2) — State's witness not an accomplice as matter of law.
    In a prosecution for the unlawful possession of intoxicating liquors, a state’s witness who accompanied another such witness to the home of a third person, and saw the( other witness talk to such person, but heard no part of the conversation, and testified that on their return to the home of the third person he saw another and defendant, defendant having a bucket in his hand, etc., was not an accomplice as a matter of law, he/ merely having taken a drink which was in possession of another, and the jury could find he was not an accomplice witness.
    3. Intoxicating liquors <&wkey;236(7) — Evidence sufficient to show defendant’s possession was to make unlawful sale.
    In a prosecution for unlawful possession of intoxicating liquor, evidence held, sufficient to show defendant’s possession of the liquor was to make an unlawful sale.
    On Motion for Rehearing.
    4. Criminal law <&wkey;200 (4) — Selling and possessing intoxicating liquor distinct offenses.
    Under the Dean Law, the act of selling intoxicating liquor is one offense and that of possessing such liquor is a separate and distinct offense, and previous conviction or acquittal of the sale of liquor does not bar prosecution for possession of the same liquor.
    5. Criminal law <&wkey;780 (I) — Failure to charge on accomplice testimony not erroneous.
    In a prosecution for the unlawful possession of intoxicating! liquor, failure to charge on accomplice testimony held, not erroneous.
    6. Criminal law &wkey;>507(l) — Law of accomplice testimony applicable where witness testifies as to sale or possession of liquor bought by him.
    When a witness testifies in a prosecution for the sale of liquor or possession only of that liquor bought by such -witness he is an accomplice, and the law of accomplice testimony is applicable.
    7. Criminal law &wkey;>507(l, 5) — -Witness, who purchased liquor other than that of which defendant is charged with possession, not an “accomplice”; receiver of stolen property is an “accomplice.”
    One who connects himself with a criminal enterprise at any stage becomes an “accomplice,” and one who receives stolen property is an “accomplice”; but a witness who purchased liquor from defendant other than that of which defendant is charged to have had unlawful possession was not an accomplice, and does not come within any of the rules of accomplice testimony.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Accomplice.] .
    Appeal from District Court, Kaufman County; Joel R. Bond, Judge.
    Clyde Chandler was convicted of the unlawful possession of intoxicating liquor, and he appeals.
    Affirmed.
    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 possession of intoxicating liquors.

Holley testified in behalf of the state that, after going to the home of John Chandler, and failing to find him, he, in company with Jenkins, went to see John Chandler at another place, learning from him that on his premises, there was a cotton picker named Slim who could furnish the witness with some whisky. The witness, on going to the home of John Chandler, saw Clyde Chandler and Slim, and discussed the purchase of a quart of whisky. Clyde and Slim went into the house, leaving the witness outside. Later, they called him in, and upon entering the room he found some whisky in fruit jars. Pie left some money and took the whisky.

Jenkins testified that he accompanied PIol-ley to the home of John Chandler and saw Holley talk to him, but heard no part of the •conversation; that, upon their return to John ■Chandler’s home, he saw Slim and Clyde Chandler, Clyde having a bucket in his hand. They went to the well and then to the house. Upon leaving, Holley was in possession of some whisky, of which the witness took a drink. Jenkins admitted that he drank some of the liquor, but claimed that he had no connection with the purchase and no knowledge of Holley’s intention to obtain the intoxicant.

Holley’s connection with the offense made him an accomplice witness, as a matter of law. Franklin v. State, 227 S. W. 486. His testimony, uncorroborated would not support the conviction. Code of Crim. Procedure, art. 801. The facts related by Jenkins tended to connect appellant with the commission of the offense, and, unless Jenkins was an accomplice, the evidence is sufficient to support the verdict.

There are facts revealed which would have justified the court in calling upon the jury to determine whether' Jenkins was an accomplice witness or not; and, on request, he would have been obliged to so charge the jury. Huggins v. State, 85 Tex. Cr. R. 205, 210 S. W. S04. Jenkins was not an accomplice, as a matter of law. He disclaimed any participation in the offense or any knowledge of the unlawful intent of Holley or of the appellant. From his testimony, his sole connection with the transaction consisted in his presence, and the fact that he took a drink of the whisky which was in Holley’s possession. Upon this testimony the jury was privileged to find that he was not an accomplice witness. The verdict implies that this was done.

The evidence, we think, is sufficient to show that the appellant’s possession of the liquor was for the purpose of making an unlawful sale. The definite testimony of Holley, who was an accomplice, being sufficiently corroborated by the testimony of Jenkins, who is not shown to have been an accomplice, renders the evidence sufficient to support the conviction.

The judgment is therefore affirmed.

On Motion for Rehearing

LATTIMORE, J.

Appellant’s motion for rehearing is predicated on the proposition that one may not be convicted of possessing intoxicating liquor, if he had theretofore been convicted or acquitted of the sale of the same liquor, and that a special charge, in the instant case, presenting the matter of his former conviction for the sale of such liquor as a bar to a conviction for the possession thereof, should have been given; and that an exception to the main charge for failure to submit the question of jeopardy in the instant case, as growing out of the fact that he had theretofore been convicted for selling 'the liquor >for which he is here prosecuted as a possessor, was well* taken.

Selling intoxicating liquor is a distinct offense. Possessing such liquor is a different offense under the specific descriptions of those acts made punishable by what is known as the Dean Law (Acts Second Called Session, Thirty-Sixth Legislature, p. 228). The two acts, that is, selling and the possessing, can be seen at a glance to be, in fact, as- well as in law, separate acts. A man may possess any quantity of liquor — enough to debauch a community — and give it away and dispose of it as he pleases without selling-a drop. So a man might sell that which belonged to him, and which at the time of its sale was in the actual manual possession of another. The fact that possession and delivery commonly accompany a sale does not make the two equivalent, or the same transaction in law or fact, so as to make the doctrine of carving apply, and prevent separate prosecutions and convictions. Breaking a house and stealing therefrom are closely connected, but a conviction for one is not a bar to the other; so, also, forgery and the passing of a forged instrument may both be accomplished in five minutes, but are separate and distinct offenses. We think no error is shown in any of the contentions mentioned.

We find nothing in the case of Thomas v. State, 230 S. W. 159, which supports the contention of appellant.

There was no error in failing to charge on accomplice testimony in the instant case. The record shows appellant in possesion of other liquor than that sold. The law of accomplice testimony in a case wherein the charge is possession of liquor, some portion of which is sold by the accused, could only be held to apply to that part of the liquor sold to the witness, and would not apply to the testimony of said witness as to other liquor then in his possession. We might illustrate this by referring to the case of one who assists in the theft of an animal, and, when said animal is carried to the premises of one of said thieves, or found thereon, a number of other stolen animals are found in possession of said thief, -with which, it might be made clear, the accomplice in the theft of the one head of cattle had no connection. He would not be an accomplice as to the theft of the other animals found in possession of said thief, and with the taking of which he had no connection. When a witness testifies in a prosecution for the sale of liquor, or the possession only of that liquor bought hy such purchaser, we believe that the witness is an accomplice, and the law of accomplice testimony is applicable. We cannot apply to liquor prosecutions different rules from those which apply to other criminal cases, unless directed so to do by statute. It is a well-settled rule that one who connects himself with a criminal enterprise at any stage becomes an accomplice as to what has gone before. It is equally well settled that one who receives stolon property is an accomplice, and, if he testifies for the state on the trial of the party from whom he received said stolen property, he is held to be an accomplice, and the law of accomplice testimony should be given in charge, even though it should appear that the theft of the article was entirely completed before his connection therewith. In the instant case appellant was shown without contradiction to have been in possession of other liquor besides that bought by the witness who testi-fled against him on the instant charge of possessing, and we therefore do not think the case falls within any of the rules of accomplice testimony.

As to the other contentions relative to the apparent conflict between the state and national liquor laws, they have all been considered and decided adversely to appellant in the decisions of this court.

Finding no error in the original opinion, the motion for rehearing is overruled. 
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