
    WESTBROOK v. STATE.
    (No. 5959.)
    (Court of Criminal Appeals of Texas.
    Jan. 26, 1921.
    On Motion for Rehearing, Feb. 16, 1921.)
    1.Bail <&wkey;66 — Recognizance on appeal held insufficient.
    A recognizance, “This day came into open court W., defendant in the above entitled and numbered cause, who together with S., J., and T., sureties, acknowledged themselves jointly and severally indebted to the state of Texas, * * * conditioned that the said W., who stands charged with the offense of a felony, to wit, unlawfully selling intoxicating liquors, in this court, shall appear before this court from day to day and from term to term of the same, and not depart therefrom without leave of this court in order to abate a judgment of the Court of Criminal Appeals of the state of Texas in this ease,” is such as is required for the appearance of an accused under Code Cr. Proc. 1911, art. 315, but is not the recognizance required upon appeal under articles 902, 903, nowhere stating that accused has been convicted of any named offense.
    On Motion for Rehearing.
    2. Indictment and information <&wkey;79 — Incorrect grammar, bad spelling, and wrong words do not alone render indictment bad.
    Incorrect grammar, bad spelling, bad handwriting, and the use of words not technically in their correct sense or places will none of them make an indictment bad, unless they cause the thing intended to be charged to lack sense or certainty, under Vernon’s Ann. Code Cr. Proc. 1916, art. 476.
    3. Indictment and information t&wkey;79 — Use of “or” instead of “nor” held not to render indictment bad.
    An indictment under the Dean Law, relating to sales of intoxicating liquors, was not bad by reason of using the word “or” instead of the word “nor” in the expression, “Not for mechanical, scientific, or sacramental purposes,” in view of Vernon’s Ann. Code Cr. Proc. 1916, art. 476.
    4. Criminal law <&wkey;507(I) — Testimony of purchasers of liquor must be corroborated.
    In a prosecution for selling intoxicating liquors in violation of the Dean Law, testimony of persons who participated in the purchase of the liquor is not alone sufficient to warrant a conviction, since Code Cr. Proc. 1911, art. 801, is peremptory that a conviction cannot be had upon the uncorroborated testimony of an accomplice.
    5. Criminal law <&wkey;>511 (10)— One accomplice cannot corroborate another.
    One accomplice cannot corroborate another accomplice.
    Appeal from District Court, Red River County; Ben H. Denton, Judge.
    Will Westbrook was convicted for selling intoxicating liquors, and be appeals.
    Reversed and remanded.
    See, also, 225 S. W. 750.
    Sturgeon & Sturgeon, of Paris, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for tbe State.
   LATTIMORE, J.

Tbe state bas moved to dismiss this appeal for tbe want of a sufficient recognizance. Tbe only recognizance appearing in tbe record is as follows:

“This day came into open court Will West-brook, defendant in the above entitled and numbered cause, who together with S. R. Harper, J. R. White, and Toney White, sureties, acknowledge themselves jointly and severally indebted to the state of Texas in the sum of $1,500, conditioned that the said Will West-brook, who stands charged with the offense of a felony, to wit, unlawfully selling intoxicating liquors in this court, shall appear before this court from day to day and from term to term of the same, and not depart therefrom, without leave of this court, in order to abide a judgment of the Court of Criminal Appeals of the state of Texas in this case.”

This appears to be, in form, such a recognizance as is required for the appearance of the accused under article 315 of our C. C. P., and is not the recognizance required upon appeal under articles 902, 903, C. C. P. Same nowhere states that appellant has been convicted of any named offense, either misdemeanor or felony, and is insufficient.

The motion is sustained, and the appeal dismissed. .

On Motion for Rehearing.

A sufficient appeal bond having been filed, the appeal is reinstated. Appellant was convicted in the district court of Red River county of a violation of the Dean Daw. Acts Second Called Session, 36th Legislature, p. 228. The charge was selling intoxicating liquor. Appellant made a motion to quash the indictment because in that part of same in which the statutory exceptions were negatived by the pleader occurred this expression, ‘‘Not for mechanical, scientific, or sacramental purposes.”' It was contended that the word “nor” should have been used where “or” occurred. This motion was overruled. Article 476, Vernon, C. C. P., is as follows:

“An indictment shall not be held insufficient, nor shall the trial, judgment, or other proceedings thereon be affected, by reason of any defect or imperfection of form in such indictment which does not prejudice the substantial rights of the defendant.”

Under this statute are grouped many decisions of this court affirming the sensible proposition that incorrect grammer, had spelling, bad handwriting, the use of words not technically in their correct sense or places, will none of them make an indictment bad unless same causes the thing intended to be charged to lack sense or certainty. The indictment is sufficient.

But two witnesses testified. Without question both of them participated in the purchase of the liquor, the sale of which the appellant is charged with making. Under the Dean Law both were therefore guilty of a crime, and were accomplices of appellant.' There was no other testimony as to appellant’s guilt. Article 801 of our C. C. P. is positive and peremptory in its statement that a conviction cannot be had in this state upon the uncorroborated testimony of an accomplice. Equally well settled is the doctrine that one accomplice cannot corroborate another. This makes it imperative that the judgment be reversed and remanded; and it is so ordered. 
      &wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     