
    NEWTON v. STATE.
    (No. 6410.)
    (Court of Criminal Appeals of Texas.
    Nov. 2, 1921.
    Rehearing Denied Jan. 18, 1922.)
    1. Criminal law <g^=507*/2 — Evidence to show witness accomplice held properly excluded.
    On 'a trial for selling whisky, a question asked the purchaser of the whisky as to whether the reason that he did not know how many times he had had whisky in his store since a given date was because it was such a frequent thing that he could not remember the number of times had no legitimate bearing on the question whether the clerk in the store was an accomplice.
    2. Criminal law <©=>5071/2 — Question asked alleged accomplice held immaterial.
    Where, on a trial for selling whisky, it was •claimed that the purchaser and a clerk in his store were accomplices, and both testified that when either of them had whisky in the store the other was welcome, to it, a question .asked the purchaser as to whether it had not happened in the past that, when he had whisky in the store, the clerk could drink it, and vice versa, sought to elicit no material fact.
    3. Criminal law <@=>507!/2 — Exclusion of question asked alleged accomplice to sale of whis-ky held not error.
    Where, on a trial for selling whisky, it was claimed that the purchaser and a clerk in his store were accomplices, and both testified fully to their individual purchases of liquor, and the purchaser testified that he hid his whisky, but that the clerk had so little he did not know whether he hid it or not, the exclusion of a question whether what whisky the clerk had was hidden in the store gave defendant no ground for complaint.
    4. Criminal law <©=>507|/2 — Question asked alleged accomplice held too indefinite.
    Where, on a trial for selling liquor, it was claimed that the purchaser and a clerk in his store were accomplices, a question asked the cierk as to whether he and the purchaser ever had a conversation with reference to being out of whisky, and later one of them going out to get some, was too indefinite, and shed no light on the issue.
    On Motion for Rehearing.
    5. Criminal law <§=>742(2) — Employee of purchaser of liquor held not accomplice as matter of law.
    Where the proprietor of a store and his clerk each, at times, had liquor in the store, and permitted the other to use it freely, but they never joined in any purchase of liquor or contributed thereto, or had any agreement or understanding that liquor purchased by one was for the benefit or at the expense of both, and the clerk was not shown to have had any interest in the liquor sold by defendant to the proprietor, the clerk was not an accomplice as a matter of law.
    6. Criminal law <©=>! 144(13) — Jury presumed not to have regarded witness as an accomplice when question not submitted.
    Where the court was not requested to have the jury determine whether, under the facts, a witness was so connected with the crime as to be an accomplice, it must be presumed in support of the judgment that the jury did not regard him as an accomplice, and his evidence is therefore available in support of the judgment.
    Appeal from District Court, Kaufman County; Joel R. Bond, Judge.
    Jep Newton was convicted of selling liquor, and he appeals.
    Affirmed.
    Wynne & Wynne and Cooley & Crisp, all of Kaufman, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Kaufman county of selling liquor, and given two years in the penitentiary.

By his bill of exceptions No. 1 complaint is made that appellant was not allowed to ask witness Scott, in reference to how many times he had had whisky in his store since November, 19-20, the following question: “Was it such a frequent thing that you cannot remember the number of times? Is that the reason you. don’t know?” If the purpose of the evidence was to show that Scott was an accomplice, this was sufficiently shown. If its purpose was to attempt to show that Scott’s clerk, one Clarkson, was also an accomplice, we would hold that an affirmative answer on the-part of Scott to such question would have no legitimate bearing on the proposition that Clarkson was an accomplice.

The question to Scott to the effect that he knew that it had happened in the past, that when he had whisky in the store Clark-son could drink it, and vice versa, sought to elicit no material fact. Scott and Clarkson testified that when either of them had whisky in the store the other was welcome to help himself.

We do not see any ground for complaint in that, when Scott was on the stand, he was not allowed to state that what whisky Clarkson had was also hidden in the back of the store. The record discloses that both Scott and Clarkson testified fully to their individual purchases of liquor, and Scott said that he hid his, but that Clarkson had so little that he did not know whether he hid it or not.

The question to Clarkson as to whether he and Scott had ever had a conversation with reference to being out of whisky, and later one of them going out and getting some, was too indefinite, and shed no light on the issue relating to the sale under investigation.

Scott had a furniture business, and Clark-son worked for him. On the occasion of the sale in question Scott went into a garage and bought a fruit jar of whisky from appellant, agreeing to pay him therefor $10. They took the jar back to Scott’s store, where appellant was paid. Clarkson was at work in the store, and saw Scott make payment. He testified that later he drank some of the liquor. He was a witness for the state. By cross-examination of Scott and Clarkson appellant sought to show that Clarkson had an interest in the liquor such as would make him an accomplice. This was denied by both Scott and Clarkson, who stated that they each at times had liquor at the store, and when there it was at the free use of the other, but that at no time had they joined in any purchase or contributed thereto, or that they had any kind of agreement or understanding that any liquor purchased by one was for the benefit or at the expense of both. Clarkson is not shown to have had any interest in the liquor, the sale of which constitutes the violation of the law here charged, and the question of his being an accomplice was not raised by any evidence. The trial court charged that Scott was an accomplice.

The authorities cited by appellant are those in which there was evidence showing an acting together or connection in the transaction instanced, such as would fairly raise the question of participation in the criminal enterprise, and justify the submission of the issue by the court, but we do not think any of said authorities support the proposition on facts similar to those in the instant case.

The judgment of the trial court will be affirmed.

On Motion for Rehearing.

MORROW, P. J.

We have reviewed the record in the light of appellant’s motion for rehearing.

We think there was no evidence excluded of which appellant could justly complain. Practically all of the material evidence offered touching the connection of the witness Clarkson with the offense, and bearing upon his status as ■ an accomplice witness, was received by the court. He was not an accomplice as a matter of law. The court was not requested to cause the jury to determine whether, under the facts, he was so connected with, the crime as to classify him as an accomplice witness. In the absence of such a request, it must be presumed, in support of the judgment, that the jury did not regard him as an accomplice. His evidence is therefore available on appeal to support the judgment, and, in connection with the other evidence, is sufficient. Sanchez v. State, 48 Tex. Cr. R. 591, 90 S. W. 641, 122 Am, St. Rep. 772, and other cases listed in Chandler v. State, 230 S. W. 1002.

The motion for rehearing is overruled. 
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