
    COLTER v. STATE.
    (No. 7500.)
    (Court of Criminal Appeals of Texas.
    Oct. 10, 1923.
    Rehearing Denied Nov. 14, 1923.)
    1. Criminal law <&wkey;982 — No error in.rtfusing .an instruction for a suspended sentence where accused ,is over 25 years of age.
    Error cannot be predicated on the trial court’s declining to submit an instruction on the question of a suspended sentence for one accused of the .sale of whisky., under Vernon’s Ann. Pen. Code Supp. 1922, art. 588%a4; no averment being made in the application that accused was under 25 years, of age, and the court certifying that the accused is over .that age.
    2. Criminal law <&wkey;507(l) — Where witness acted solely with and 'for the purchaser in the purchase of whisky, he was not an accomplice with defendant.
    A witness who acted solely with and for the purchaser in the purchase of Whisky from defendant, by transmitting a cheek between the parties and allowing defendant to place the whisky in his bam, was not an accomplice in the sale, under Vernon’B Ann. Pen. Code Supp., 1922, art. 5S8%a3.
    3. Criminal- law &wkey;>372(2) — Prosecution permitted to show defendant sold whisky at another time, where he admits the transaction, but claims he acted as agent.
    Where defendant admitted a transaction involving the sale of whisky, but alleged that the whisky was not sold by him, but was purchased from another party for the accommodation of another, the state can show that defendant sold whisky at another time, to aid the .jury in solving the question of alleged agency.
    On Motion for Rehearing.
    4. Criminal law i&wkey;>507(l) — That witness appropriated money returned to the purchaser, after sale of whisky was completed, did not make him accomplice in the sale.
    The fact that witness appropriated part of the money returned by defendant to the purchaser of whisky, due to poor quality, did not make him an accomplice with the defendant in its sale, which was completed when the whisky was turned over to the purchaser.
    «gssFor other cases see sametopic and KEY-MTJMBER. in all Key-Numbered Digests and Indexes
    Appeal from District Court, Kaufman County; Joel R. Bond, Judge.
    Raudall Colter was convicted of selling whisky, and he appeals.
    Judgment affirmed.
    Wynne & Wynne, of Kaufman, for appellant. •
    H. it. Xoung, Co. Atty., of Kaufman, and R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J

Conviction is for the sale of whisky. Punishment was assessed at two years in the penitentiary.

Appellant filed an application requesting that the issue of suspended sentence be submitted to the jury. The application contains no averment that accused was under 25 years of age. In refusing a requested instruction upon the issue the learned trial judge certifies that he declined to submit the question because accused was more than-25 years old. The correctness of the court’s-action is manifest from article 588% a4, Vernon’s 1922 Supplement; Robinson v. State, 92 Tex. Cr. R. 527, 244 S. W. 599; Davis v. State, 93 Tex. Cr. R. 192, 246 S. W. 395; Hooper v. State (Tex. Cr. App.) 250 S. W. 694.

The contention is made that the court should have instructed the jury that the witness Wilson was an accomplice, dr should have submitted the question to the jury under an appropriate charge. Wilson’s testimony is, in substance, that appellant sold the whisky to one Frederick; that it was' to be delivered at Wilson’s barn; that Frederick left a check with Wilson which he turned over to appellant when the whisky •was placed in the barn. Frederick’s testimony would make Wilson his agent in the purchase of the whisky, which is borne out by the evidence of appellant that his transaction was with Wilson. We think neither charge called for. Whatever Wilson’s connection with the matter may have been, he was acting with and for the purchaser. The purchaser of intoxicating liquor is no longer an accomplice. See article 588%a3, Vernon’s 1922 Supplement (Acts 37th Leg. [1921] 1st C. S. c. 61), adding section 2c to Acts 1919, 36th Leg. 2d C. S. c. 78; Cortinas v. State, 93 Tex. Cr. R. 52, 245 S. W. 911; Plachy v. State, 91 Tex. Cr. R. 405, 239 S. W. 979.

The state’s evidence on direct examination showed that Wilson and Frederick went to Cedarvale shortly before Christmas of 1921 and there met appellant, where Frederick contracted with him for five gallons of whisky to be delivered in Terrell at Wilson’s bam; it was so delivered, and Wilson gave appellant Frederick’s» check for $75 in payment therefor. Appellant admitted a transaction involving five gallons of whisky, but asserted that be was acting only as aecommo- ■ dation agent for Wilson, and that the whisky delivered at the latter’s barn was not sold by appellant, but was purchased by him for Wilson from a man camped near the asylum grounds in- Terrell. In this state of the record the state in rebuttal was permitted' to prove over objection that about July, 1921, appellant sold a quart of whisky to Frederick at or near Cedarvale. It is well settled that in prosecutions for the illegal sale of intoxicating liquor other sales cannot he shown unless facts are developed which make such other transaction admissible under an exception to the general rule excluding proof of other offenses. Many cases illustrating the rule are cited under section 166, Branch’s Ann. P. C. See, also, Ross v. State (Tex. Cr. App.) 245 S. W. 680; Burton v. State, 93 Tex. Cr. R. 335, 247 S. W. 869. Where accused admits in whole or in part the transaction upon which the state relies for conviction, but defends on the ground that he was acting as agent for the purchaser, it appears under former decisions of this codrt to present one of the exceptions making permissible proof of other sales to aid the jury in solving the question of alleged agency. Ross v. State, 72 Tex. Cr. R. 611, 163 S. W. 433; James v. State, 63 Tex. Cr. R. 75, 138 S. W. 612; Columbo v. State, 65 Tex. Cr. R. 608, 145 S. W. 910.

Finding no errors in the record, the judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

We discuss the appellant’s contention, that we erred in upholding the action of the trial court in not submitting the issue of suspended sentence, no further than to say that our former conclusion is upheld by the unbroken decisions of this court.

Appellant again insists that the learned trial court erred in refusing to instruct the jury that state witness Wilson was an accomplice ; his contention being based on the proposition that, according to the testimony of appellant and his witnesses, Wilsbn kept certain money turned over to him by appellant to be paid to Mr. Frederick. That this may be clear, it appears from the facts that Mr. Frederick gave Wilson a check for $75 • to be used by the latter in payment for the whisky involved in the alleged transaction. This check was turned over to and indorsed by appellant, and the five gallons of whisky were admittedly brought by appellant' and put in the bam of Wilson. It is also without dispute that subsequent to this transaction Mr. Frederick claimed the whisky was unfit fot use, and remanded the return of his money from appellant. Frederick and Wilson both testified that when the money . was returned by appellant to Wilson for Frederick that $7.50 was kept out for a. half gallon jar of the -liquor that was broken by Mr. Frederick. Frederick said, when it was agreed that the money was to be paid back to him by appellant, except for that which was broken, that appellant’ and Wilson went into the office of the lattfer, from which Wilson presently emerged, with $67.50 in money, which was by him turned over to Frederick. Appellant and his witnesses testified that he turned over $75 to Wilson. As we understand appellant’s contention under discussion, it is that Wilson kept $7.50 of the money thus returned to him by appellant, and by that act became an accomplice. We would not be inclined to think such facts to make of Wilson an' accomplice in any event. The sale of the liquor, if any, had been completed, and. the liquor turned over to the purchaser. The violation of the law .charged against appellant was completed. If, in a subsequent attempt to readjust the transaction because of the inferior quality of the whisky, Wilson appropriated part of the money given him by appellant to be returned to Mr. Frederick, this would not seem to us capable of any interpretation that. would make Wilson an accomplice to the sale of the liquor. His act in this connection, if as contended by appellant, was not part or parcel of the transaction resulting in ■ the completed sale of the liquor, but arose from his lapse in connection with the readjustment. Even if guilty of embezzlement or any other crime in connection with an appropriation of the alleged $7.50, his status in this regard could not be looked to as determining his attitude as a witness in .the other transaction.

Nor are we able to agree with appellant that the learned trial judge erred in admitting evidence of a prior transaction between appellant, Wilson, and Frederick, similar to the one detailed here. Appellant having asserted his entire innocence in the instant transaction, and that he acted solely as accommodation agent for the purchaser Wilson, or Wilson and .Frederick, it was competent for the state to rebut this claim of innocent intent, in the transaction under investigation, by proof of another transaction involving a sale by appellant.

The motion for rehearing will be overruled.  