
    (85 Tex. Cr. R. 62)
    CHANCE v. STATE.
    (No. 5339.)
    (Court of Criminal Appeals of Texas.
    March 12, 1919.)
    1. Intoxicating' Liquors <§=»146(1, 3), 169— Unlawful Sales.
    Under local option law, one who sells intoxicating liquors or acts as agent of another selling intoxicating liquors is guilty of crime, but one who acts purely for accommodation of purchaser is not guilty of crime.
    2. Criminal Law <S=^792(2) — Local Option Law — Instructions—“Principal.”
    In prosecution for unlawful sale of intoxicating liquor, where defensive theory raised by evidence was that accused was not interested in sale, but acted solely for accommodation of purchaser, it was error for court, in addition to submission of such issue, to instruct on law of principals embodying substance of Pen. Codp 1911, art. 74, defining a principal as one who, knowing of unlawful act and being present at its commission, aids and'encourages it.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Principal.]
    Appeal from Criminal District Court, Bowie County ; P. A. Turner, Judge.
    
      Walter Chance was convicted for an unlawful sale of intoxicating liquors, and he appeals.
    Reversed and remanded.
    O. B. Pirkey, of New Boston, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction is for the unlawful sale of intoxicating liquors, in a part of the state where such liquors were prohibited under the local option law.

The state’s evidence showed that the purchaser asked appellant if he could obtain some whisky for him; that appellant consented to do so, stating that a pint would cost $3, and that some time thereafter he returned and delivered a pint of whisky, the purchaser paying him $3 therefor.

The appellant’s theory and testimony was to the effect that the purchaser asked him to get some whisky for him, and that on appellant’s promise to try to buy some for him the purchaser gave him $3 for that purpose, which he afterwards used in buying for the purchaser the pint of whisky which he delivered. He claimed that he bought it from one Rudy, and introduced some corroborating evidence. Ha claimed to have no interest in the matter further than to accommodate the purchaser. There arose from this evidence three theories: First, that appellant sold the whisky; second, that he acted as the agent of Rudy, the seller, in either of which events he would be guilty; and, third, that he acted purely for the accommodation of the purchaser, and was without interest in, and derived no benefit •from, the transaction. In this event he would not have been guilty.

The court, in addition to the submission of the issues mentioned, instructed the jury on the law of principals, embodying the substance of the statute (article 74, Penal, Code) defining a principal as one who, knowing of the unlawful act, and being present at its commission, aids or encourages it.

Looking alone to the definition of principals, it can be plausibly contended that one who, knowing the sale of intoxicating liquor is unlawful, aids and encourages the unlawful act by making the purchase is a principal. To regard him so would tend to obstruct the conviction of the seller by rendering unavailable to the state the testimony of the purchaser. To obviate this disadvantage the Legislature declared that' the purchaser was not an accomplice (Penal -Code, art. 602); and this court, in construing the law has held that' he was not a principal. Sears v. State, 35 Tex. Cr. R. 442, 34 S. W. 124; Fox v. State, 53 Tex. Cr. R. 155, 109 S. W. 370; Trinkle v. State, 59 Tex. Cr. R. 257,. 127 S. W. 1060. The uniform" holdings of this court are to the effect that, where the defensive theory raised by. the evidence ⅛ that the accused was not interested in the sale and not acting as the agent of the seller, but acted solely for the accommodation of the purchaser in obtaining the liquor for him, the jury should be instructed affirmatively that this theory being sustained, an acquittal should result. Cowley v. State, 72 Tex. Cr. R. 173, 161 S. W. 472; Scott v. State, .70 Tex. Cr. R. 57, 153 S. W. 872; Branch’s An. P. C. p. 713, art. 1248, and cases listed.

The charge on the law of principals is in conflict with the defense of agency for the purchaser, in that it leads to the conclusion that the act of the agent in buying the liquor for the purchaser was such “aid or encouragement” of the seller as would make the agent guilty as a principal. Its effect is to confuse and mislead the jury as to the true rule of law by which they are to be governed. The court, in our opinion, should have, in response to appellant’s objection to the charge, eliminated the charge on principals. The appellant requested a more comprehensive and accurate charge on the law of agency, and on another trial it should, if requested, be given or embodied in the court’s charge.

The judgment is reversed, and the cause remanded. 
      ©=oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes'
     