
    BLANKS v. STATE.
    (No. 10041.)
    (Court of Criminal Appeals of Texas.
    April 7, 1926.
    Rehearing Denied Oct. 20, 1926.)
    1. Criminal Law <&wkey;507(4).
    Officer purchasing whisky in order to trap accused into violation of law is not accomplice.
    2. Intoxicating liquors <&wkey;-223(3).
    Evidence showing sale of whisky meets allegation in indictment of sale of spirituous, vinous, and malt liquor.
    Commissioners’ Decision.
    Appeal from District Court, Kerr County; R. H. Burney, Judge.
    Jody Blanks was convicted of the unlawful sale of intoxicating liquor, and he appeals.
    Affirmed.
    Lee Wallace, of Kerrville, and W. O. Linden, of San Antonio, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   BERRY, J.

The offense is the unlawful sale of intoxicating liquor, and the punishment is one year in the penitentiary.

There is but one bill of exceptions in the record, and this pertains to the court’s action in refusing to give a peremptory instruction in favor of the defendant. Appellant contends, first, that the only witness for the state was an accomplice, in that he was an officer of the law, and that he purchased the whisky for the purpose of inducing the defendant to make the sale in order that he might be trapped into a violation of the law, and that he therefore becomes an accomplice because he aided and advised and encouraged the commission of the offense. Appellant’s contention in this respect is without merit. The statute itself expressly provides that a purchaser is not an accomplice, and there is nothing in this record taking the case out of the statute.

Appellant also contends that the evidence is insufficient because the indictment alleges that he sold spirituous, vinous, and malt liquor, and, as the evidence showed that he sold whisky, this would not meet the allegations in the indictment. This contention cannot be sustained. The authorities are so numerous to the contrary as to make it unnecessary if not indeed useless to again collate them. In addition to the proof by the witness to the effect that he bought whisky from the appellant, he goes further and testifies that the whisky that he bought from the appellant was intoxicating liquor.

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 motion for rehearing presents no fact, authority, or argument not considered by the court on the original hearing, upon which, in the light of the record, the proper disposition of the appeal in our opinion was made.

The motion is overruled. 
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