
    CRAIG v. STATE.
    (No. 6828.)
    (Court of Criminal Appeals of Texas.
    April 5, 1922.)
    Criminal law <®=»507( I) — Refusal to treat certain witnesses as accomplices held erroneous.
    In a prosecution for the unlawful sale of intoxicating liquor, the court erred in refusing to treat as accomplices witnesses who contributed to a fund for the purchase of the liquor and engaged in drinking it when procured by another with whom one of them went with the money to obtain the liquor from defendant (Code Crim. Proc. 1911, art. 801).
    Appeal from District Court, Comanche County; J. R. McClellan, Judge.
    Lon Oraig was convicted of unlawfully selling intoxicating liquor, and he appeals.
    Reversed and remanded.
    Callaway & Callaway, of Comanche, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The conviction is for the unlawful sale of intoxicating liquor.

The state’s witness Howard testified that he resided at Comanche; that he and the witness Hood went together in an automobile to the village of Hasse in the nighttime, where the appellant, Craig, got into the car with them, and the three went to a point some miles from the village, when Craig got out of the car, and in a short time returned with a half gallon of whisky, for which the witness, Howard, paid him $12. He and Hood then got into the car, and returned to Comanche. On their way, they met several other parties who were interested in the purchase of the liquor.

Hood’s testimony was in substance like that given by Howard, save that he stated that when they reached the point where they obtained the whisky both Howard and appellant got out of the car, and returned together with the whisky; that he did not see the payment made.

Lambert, on behalf of the state, testified in substance as did Hood.

Self testified that he lived in De Leon; that he and some others went to Comanche for the purpose of obtaining some whisky; that they met the witness Howard, who stateck that he could get themi some whisky, and a'T'urse of $12.50 was then made up for the purpose of buying it. The money was placed in the possession of Hood, one of the contributors, who, with Howard, went in the ear to Hasse while the witness and other companions who were interested in the purchase and some of their friends awaited the return of Howard and Hood. When they arrived with the, whisky, the parties all engaged in drinking it. One of the parties, Lambert, according- to this witness did not pay his pro rata of the contribution, but promised to do so.

The court treated Howard as an accomplice, but refused to so treat the witnesses Hood, Lambert, and Self. Because, of this error, the Assistant Attorney General for the state concedes that the judgment should be reversed. We are of the same opinion. See Code of Crim. Proc. art. 801; Chandler v. State, 89 Tex. Cr. R. 309, 230 S. W. 1002; Thomas v. State, 89 Tex. Cr. R. 129, 230 S. W. 159, and Id., 89 Tex. Cr. R. 161, 230 S. W. 160; Townsend v. State (Tex. Cr. App.) 236 S. W. 100, recently decided.

The judgment is reversed, and the cause remanded. 
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