
    BAILEY v. STATE.
    (No. 9746.)
    (Court of Criminal Appeals of Texas.
    Feb. 24, 1926.
    On Motion for Rehearing, June 9, 1926.)
    1. Criminal law <&wkey;>603(2).
    Application for continuance, which was not in conformity with Code Cr. Proc. 1925, art. 543, held, properly overruled.
    2. Indictment and information &wkey;>l 10(31).
    Indictment for unlawful possession of intoxicating liquor following language of valid stature held\ sufficient.
    3. Criminal law <§»829(l).
    Refusal of special charges held not error, where they were covered in main charge in so far as they correctly stated the law.
    On Motion for Rehearing.
    4. Criminal law <&wkey;>37l(IO) — Testimony that accused had sold whisky on certain occasion held relevant to show that his possession of liquor was for purpose of sale.
    Testimony that accused in prosecution for possessing intoxicating liquor sold whisky at his home a few days before transaction to which another witness testified held relevant to show that Ms possession of whisky was not for his own use, but for sale.
    5. Criminal law <&wkey;>507(l) — One who got half gallon of whisky from accused and paid him for it held not accomplice in possessing liquor (Pen. Code 1925, art. 670.)
    One who got half gallon of whisky from accused and paid him for it held not accompjlice in possessing liquor, in view of Pen. Code 1925, art. 670, whether he bought it from accused, or whether it was merely delivered to accused for him.
    6. Criminal law &wkey;s507(l) — Witnesses who got whisky at defendant’s home, and transported it 20 miles for purpose of sale, but did not actually sell it, held not accomplices, but principals, in prosecution for possessing liquor (Pen. Code 1925, .arts. 666, 670; Code Cr. Proc. 1925, art. 718). '
    Witnesses who got whisky at defendant’s home, and transported it 20 miles for purpose of sale, but did not actually sell it, held not accomplices, but principals, in prosecution for possessing liquor, in view of Pen. Code 1925, art. 670, notwithstanding that they also “received” liquor, which is offense under article 666, since Code Or. Proc. 1925, art. 718, relative to accomplice witnesses, is inapplicable.
    7. Statutes <&wkey;I8l (2) — Where general language of statute, construed in broad sense, will lead to absurdity, words or clauses may be enlarged or restricted, to effectuate intention of Legislature, or harmonize them with other expressed provisions.
    Where general language of statute, construed in broad sense, will lead to absurdity, words or clauses may be enlarged or restricted, to effectuate intention of Legislature, or harmonize them with other expressed provisions. 1
    !&wkey;>Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Commissioners’ Decision.
    Appeal from District Court, Runnels County; J. O'. Woodward, Judge.
    T. J. Bailey was convicted of possessing intoxicating liquor, and he appeals.
    Affirmed.
    T. T. Crosson, of Ballinger, and M. E. Sed-berry, of San Angelo, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The offense is possession of intoxicating liquor, and the punishment is three years in the penitentiary.

Appellant complains at the court’s action in overruling his first application for a continuance. The application is not in conformity with the statute, and the court’s ruling thereon was .correct. Article 543, 1925 Revised O. C. P.

The court did not err in overruling the motion to quash the indictment. The indictment follows the language of the statute, and this statute has often been held by this court to be valid.

We cannot agree with appellant’s contention that the jury should have been instructed to return a verdict of not guilty. The state witnesses in this case were not accomplices, and are expressly declared not to be by the statute itself.

We have examined the other special charges offered by the appellant, and think that, so far as they correctly state the law, they were covered by the court in his main charge to the jury.

Finding no error in the record, the judgment is in all things affirmed.

PER CURIAM.

The. foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

The state’s case is supported by the testimony of the witnesses Campbell, Davis, and Darnell. Campbell, who was a barber, testified that, after having a conversation with the appellant, in which the witness was asked if he wanted something to drink, and being informed of the appellant’s place of residence, he went to the home of the appellant on the 5th of March and purchased from him half a gallon of whisky, for which he paid $7.00. The witness Darnell claimed that, several days before the 5th of March, he had bought from the appellant at his home some whisky, which was delivered and paid for. According to Darnell, he and Davis, on a subsequent occasion, went together to the home of the appellant, and arranged with him to take some whisky to Buffalo Gap, some 20 miles or more distant from the appellant’s home. It was the state’s theory that some person at Buffalo Gap desired some whisky to sell at a .gathering which was to take place there; that, without receiving pay for it, the appellant furnished the whisky, which was carried to Buffalo Gap by Darnell and Davis. They failed to deliver the whisky to the person to whom, according to their testimony, they were taking it, for the reason that he wanted to pay for it with a check. They retained the whisky, and on their way back to the appellant’s home they were arrested and put in jail, after which they testified against the appellant. According to them, it was their understanding that the money which they were to receive from the whisky at Buffalo Gap was to be delivered to .the appellant. The amount of money which they were to deliver to him was not agreed upon.

According to the appellant’s theory, he was a companion of Davis and Darnell and had a slight acquaintance with Campbell. Davis, Darnell, and the appellant went to a barber shop, where Campbell worked. Prior to that time appellant had been approached by a bootlegger, whose name he did not remember, but who desired to sell some whisky. lie and Campbell desired to purchase some liquor, and made an arrangement with the bootlegger to deliver the whisky at the home of the appellant. He did deliver a gallon of whisky, the appellant paying therefor $10.50, half of which, according to thé previous arrangement, was to be paid for by Campbell. It was by carrying this agreement into effect that the whisky was delivered to Campbell. The same bootlegger also left whisky for Davis and Darnell. Appellant and his wife had retired for the night when they called for it, but they were informed where it could be found. Appellant disclaimed any further connection with the whisky, which was found in the possession of Davis and Darnell, and denied any sale of whisky to any one. In many of the particulars, the appellant was corroborated by the testimony of his wife.

The complaint in bill No. 12 of the receipt of the testimony of Darnell to the effect that he bought whisky from the appellant a few days previous to the transaction of Campbell is not deemed sound. Admittedly there was whisky upon the premises of the appellant. It was the state’s theory that he had it for sale. He advanced a contrary theory. The fact that he had sold whisky at his home a few days before the transaction with Campbell was relevant upon the issue of intent. In other words, it was competent evidence in support of the state’s theory that the possession of the whisky by the appellant was not for his own use but for sale. See Lankford v. State, 93 Tex. Cr. R 442, 248 S. W. 389; Thielepape v. State, 89 Tex. Cr. R. 493, 231 S. W. 769; Bryant v. State, 94 Tex. Cr. R. 67, 250 S. W. 169; Newton v. State, 94 Tex. Cr. R. 288, 250 S. W. 1036; Hubbard v. State, 94 Tex. Cr. R. 480, 251 S. W. 1054, and other cases collated in Vernon’s Tex. Cr. Stat. 1925, vol. 1, p. 442.

Bill No. 8 presents the theory that Campbell, Davis, and Darnell were accomplices, and that their testimony could not support the conviction. Bills Nos. 4 and 10 present the same theory. Article 670, P. C. 1925, reads thus: '

“Upon a trial for a violation of any provision of this chapter, the purchaser, transporter, or possessor of any of the liquors prohibited herein shall not be held in law or in fact to be an accomplice, when a witness in any such trial.”

So far as we are able to analyze, the testimony, we have perceived no phase of the ease under which Campbell could be an accomplice. According to his testimony and the state’s theory, he purchased a half gallon of whisky from the appellant, for which he paid $7.00. According to the appellant’s theory and testimony, Campbell and the appellant each purchased half a gallon of whisky from a bootlegger. ' The whisky was delivered to the appellant, and he paid the bootlegger $10.50' for it. In accord with a previous agreement, the appellant delivered to Campbell half of the whisky, and received half of the money which had been paid for it.

Touching the contention that Darnell and Davis were accomplices, or that there was evidence upon which the jury might have found them to be accomplices, it appears from the testimony of the appellant that Davis and Darnell agreed to buy a quantity of whisky from a bootlegger; and that it be left at the- appellant’s Home. The bootlegger-left it there, and Davis and Darnell got it. According to the appellant; this was the extent of his connection with it. According to Davis and Darnell, the appellant had whisky upon his premises, and agreed that it should be taken by Davis and Darnell to Buffalo Gap for the purpose of sale. Pursuant to this agreement, they took the whisky to Buffalo Gap, intending to sell it and bring to the appellant all or a part of the money from the sale. The sale was not effected, and Davis and Darnell were arrested while in possession of the whisky. If the sale had been effected, then the matter would come in a different light; but, if we comprehend the evidence, it shows that the whisky which was in possession of Davis and Darnell was merely possessed for the purpose of sale. Under the evidence, they were principals together with the appellant.

The contention is made that in article 666, P. O. 1925, it is made an offense to possess or “receive” intoxicating liquors for the purpose of sale, and that in article 670, supra, one who “receives” intoxicating liquors is not exempted from the operation of article 718, C. C. P. 1925, touching an accomplice witness. It is insisted that under the rule announced in Cate v. State, 100 Tex. Cir. R. 611, 272 S. W. 210, Darnell and Davis, having received, possessed, and transported the whisky for the purpose of sale, were accomplices within the meaning of the statute. Other cases in line with the Cate Case, supra, are Pippen v. State (Tex. Cr. App.) 278 S. W. 205; Watkins v. State (Tex. Cr. App.) 277 S. W. 397; Hollis v. State, 100 Tex. Cr. R. 521, 271 S. W. 900; Sullivan v. State, 100 Tex. Cr. R. 419, 273 S. W. 567; Ross v. State, 100 Tex. Cr. R. 295, 273 S. W. 582. The rule announced in the Oate Case, and those following it, is that one who is prosecuted for any of the offenses named in title 11, chapter 7, of the -Penal Code of 1925, pertaining to intoxicating liquors, may not, by reason of article 718, supra, be convicted upon the uncorroborated testimony of a coactor in the commission of an offense, or one so criminally connected with it as to bring him within the category of an accomplice witness, unless it be a witness exempted from the operation of article 718 by article 670,. supra.

The question presented is, therefore, whether the witnesses in the present case, namely, Davis and Darnell, are exempted from the operation of article 718, supra. It therefore becomes necessary to interpret the legislative intent in the enactment of article 670, and to make such intent - effective as applied to the facts in the present instance. The construction of article 670, supra, in-accord with the appellant’s contention, would operate to nullify or make it absurd. It is difficult to conceive a case in which the purchaser, transporter, or possessor of intoxicating liquors for the purpose of sale could be convicted, without proof that the offender was also a “receiver” of such liquors. Whether the word “receive,” embraced in the statute, creates a specific offense, is not free from doubt. See Winberly v. State, 98 Tex. Cr. R. 152, 265 S. W. 155. Aside from that question, and having in mind the history of the legislation, the following words of a learned text-writer are pertinent;

“Words or clauses may be enlarged or restricted to effectuate the intention, or to harmonize them with other expressed provisions. Where general language, construed in a broad sense, would lead to absurdity, it may be restrained. The particular inquiry is, not what is the abstract force of the words or what they may comprehend, but in what sense they are intended to be used as they are found in the act. The sense in which they were intended to be used furnishes the rule of interpretation, and this is to be collated from the context; and a narrower or more extended meaning is to be given, according to the intention thus indicated.” Lewis’ Sutherland on Stat. Construction, vol. 2, § 376, p. 722.

Illustrations of the application of this principle will be found in many decisions construing the law against carrying weapons.. See Waddell v. State, 37 Tex. 354; Wilson v. State, 86 Tex. Cr. R. 356, 216 S. W. 881; Mays v. State, 51 Tex. Cr. R. 35, 101 S. W. 233; Pressler v. State, 19 Tex. App. 53, 53 Am. Rep. 383; Rines v. State (Tex. Cr. App.) 38 S. W. 1017. See also Street v. Lincoln Safe Deposit Co., 254 U. S. 88, 41 S. Ct. 31, 65 L. Ed. 151, 10 A. L. R. 1548. It is deemed applicable on the present occasion. Darnell and Davis were “possessors for the purpose of sale,” and were “transporters,” and as such were declared by the Legislature not accomplice witnesses. Article 670, supra. The fact that, in taking, transporting, and possessing, they necessarily received it, does not, in the judgment of this court, render them accomplice witnesses. Such a construction would nullify and render the statute absurd, and would obviously be contrary to the legislative intent in the enactment of the statute, article 670, supra.

We have dealt with the question of accomplice testimony on the merits of the case, though the bills by which it is presented are of questionable sufficiency.

Eor the reasons stated, the motion for rehearing is overruled.  