
    WIMBERLY v. STATE.
    (No. 7197.)
    (Court of Criminal Appeals of Texas.
    Dec. 6, 1922.)
    1. Intoxicating liquors &wkey;»!32 — Accused entitled to be tried by law in force when offense was committed.
    Defendant accused of transporting liquor, the date of the offense being anterior to amendment of the Dean Daw by Acts 37th L.eg. 1st Called Session (1921) c. 61 (Vernon’s Ann. Pen. Code Supp. 1922, art. 58814 et seq.), is entitled to be tried under the law in force at the time the offense charged was committed.
    2. Criminal law &wkey;742(2) — Court held not warranted in holding witnesses not accomplices as matter of law.
    Where there was evidence that two witnesses, upon whose testimony the state relied to convict accused of unlawfully transporting liquor, had found the liquor hidden in a thicket on the premises of one of them, and had drank some of it and taken some with them, and removed the balance further into the thicket, and that later one of them showed accused where it was when he came to take it away, held, the court erred in deciding as matter of law that they were not accomplices under chapter 78, Acts of 36th Deg., 2d Called Sess. (1919) before amendment by chapter 01, Acts of 37th Deg. (1921) 1st Called Sess. (Vernon’s Ann. Pen. Code Supp. 1922, art. 588% et seq.), whose testimony must be corroborated under Code Cr. Proc. art. 801.
    For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Blanco County; J. H. MeDean, Judge.
    Joe Wimberly was convicted of unlawfully transporting intoxicating liquor, and he appeals.
    lie-versed and remanded.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The appeal is from a judgment condemning the appellant to confinement in the penitentiary for a period of one year for the offense of unlawfully transporting intoxicating liquor.

The date of the offense is July, 1921, anterior to the amendment of the so-called Dean Daw, by the enactment of chapter 61, Acts of the 37th Deg., 1st Called Session (Vernon's Ann. Pen. Code Supp. 1922, art. 588% et seq.).

Por proof of the main criminating facts, the state relied upon the testimony of Alva George and Guy Maddox. Maddox found a ten-gallon keg about two-thirds full of whis-ky upon the premises of George. He drew part of the whisky, moved the keg some little distance, and reported the finding to George. The keg, at the time it was discovered, was hidden in the bushes. Maddox and George removed the keg deeper into the thicket, took out part of the whisky, and put it in a jug, which they deposited upon the premises of George.

The appellant, Wimberly, came to the home of George and inquired about the whisky. George told him that it' had been found and went with him to locate it. Wim-berly, in George’s presence, put the whisky in his automobile and carried it away.

In chapter 78 of the Acts of the 36th Deg., 2d Called Session, the possession of intoxicating liquor, with certain qualifications, was made penal. In chapter 61, supra, said chapter 78 was amended and modified, though not repealed. Ex parte Mitchum (Tex. Cr. App.) 237 S. W. 937.

Appellant, in the instant case, demanded that he be tried under the law in force at the time the offense was committed. To this he was entitled. Plachy v. State (Tex. Cr. App.) 239 S. W. 980.

He also insists that the court should have instructed the jury to determine whether or not the witnesses George and Maddox were accomplice witnesses within the meaning of article 801 of the Code of Crim. Proc., and by proper procedure reserved an exception to the denial of this request. The connection of the witnesses mentioned with the transaction was not such, we think, as justified the trial court in refusing to give the instruction mentioned; The keg of whisky was upon the premises of the witness George. See article 588%oo, Vernon’s Ann. Pen. Code Supp. 1922. Its presence there is not explained. Apparently it was concealed. He and Maddox took possession of it and carried it deeper into the thicket, drank part of it, and took part of it to the house occupied by George. It was to the witness George that the appellant came when he desired to transport the liquor. George accompanied him to its hiding-place and to that extent aided in its transportation. The record does not so clearly exculpate the witnesses George and Maddox from criminal participation in the offense as justified the trial court in determining, as a matter of law, that they did not come within the purview of the statute relating to accomplice witnesses.

Because of the error pointed out, the judgment is reversed, and the cause remanded.  