
    CATE v. STATE.
    (No. 8767.)
    (Court of Criminal Appeals of Texas.
    April 8, 1925.
    Rehearing Denied May 20, 1925.)
    1. Witnesses &wkey;>48(3) — Witness not incompetent on ground that he had been convicted of felony, where notice of appeal from such conviction had been given.
    Witness is not disqualified from testifying on ground that he had been convicted of a felony until judgment has become final, so, where notice of appeal from conviction had been given, witness was competent.
    2. Criminal law &wkey;507(I) — Statute declaring purchaser, transporter, or possessor of liquor shall not be regarded as accomplice is strictly construed.
    Acts 1st Called Sess. 37th Leg. (1921) c. 61, § 2c (Vernon’s Ann. Pen. Code Supp.. 1922, art. 588%a3'), declaring that purchaser, transporter, or possessor of prohibited liquor shall not be regarded as accomplice in prosecution for violating liquor laws, being exception to general rule relating to accomplices’ testimony, is to be strictly construed.
    3. Criminal law <&wkey;507( I) — “Accomplice” defined.
    An “accomplice” is one who testifies in behalf of state, and who is either principal, accomplice, or accessory to crime under investigation, whether his connection with it be by unlawful act or omission transpiring either before, at time of, or after, .commission of offense, and whether he was present and participating in particular crime charged, would make no difference.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Accomplice.]
    4. Criminal law <&wkey;507(l) — Maker of whisky' is accomplice of person to whom he delivers it.
    In prosecution for possessing whisky for purpose of sale, maker of such whisky, who delivered it to accused, is accomplice, notwithstanding Acts 1st Called Sess. 37th Leg. (1921) e. 61, § 2c (Vernon’s Ann. Pen. Code Supp. 1922, art. 588%^3), providing that'purchaser, transporter, or possessor of prohibited liquors shall not be regarded as an accomplice.
    On Motion for Rehearing.
    5. Criminal law <&wkey;>507(l) — Manufacturer of whisky, who transports it jointly with another, is accomplice.
    That manufacturer of liquor, subsequently transports or possesses it jointly with another does not remove manufacturer from domain, of an accomplice within Acts 1st Called Sess. 37th Leg. (1921) c. 61, § 2c (Vernon’s Ann. Pen. Code Supp. 1922, art. 588% a3).
    Appeal from District Court, Collin County; ■F. E. Wilcox, Judge.
    Earl Cate was convicted of possessing intoxicating liquor for the purpose of sale, and he appeals.
    Reversed and remanded.
    Smith & Abernathy, of McKinney, for ap--pellant.
    H. Grady Chandler, Co. Atty., and W. C. Dowdy, Asst. Co. Atty., both of McKinney, and Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORB, J.

Appellant was convicted in the district court of Collin county of possessing intoxicating liquor for the purpose of sale, and his punishment fixed at one year in the penitentiary.

Appellant objected to the testimony of one McMillan, upon the ground that he had been convicted' of various felonies in Wise county. It was shown that notice of appeal had been given in each case of conviction against said witness. The judgments had not become final. Until they did so become final, disqualification could not be urged and sustained for the reason named. Hurly v. State, 35 Tex. Cr. R. 282, 33 S. W. 354; Flournoy v. State (Tex. Cr. App.) 59 S. W. 902; Smith v. State, 83 Tex. Cr. R. 485, 203 S. W. 771.

Appellant insisted that McMillan was an accomplice, and asked a special charge so stating, and also excepted to' the main charge for not instructing the jury to such effect. McMillan testified for the state that he was appellant’s hired man, and dug the dugout where the whisky in question was made, helped to make it, and said that he had made 1() gallons the day before the raid of the officers, and that he turned it over to appellant and his son, who told him that they were going to get $15 per gallon for it. If we understand the record, said witness made the very whisky for the possession of which appellant was convicted. The state’s contention is that by the terms of section 2c, c. 61, Acts of the First Called Session of the Thirty-Seventh Legislature (Vernon’s Ann. Pen. Code Supp. 1922, art. 588%a3), this witness was removed from the ranks of accomplices. Said section 2c is as follows:

“Upon a trial for a violation of any of the provisions 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.”

Beyond doubt this does not in terms prevent one who manufactures liquor, when used as a witness against some other person charged with criminal connection with such liquor, from being held an accomplice. The lawmakers exempted only the purchaser, transporter, and the possessor from being accomplices. With their purpose or reason for so doing we have no concern, but this is as far as they have gone. The state asserts that one who has liquor in his possession is to be deemed only a possessor, even though he had illegally made the liquor so possessed. The possession of the quantity of liquor had in this case would' make of its possessor prima facie a criminal. The statute removing him from the domain of an accomplice witness, when called on to testify against another accused of some crime growing out of the transportation, sale, etc., of such liquor, is in the nature of an exception ingrafted upon our law of accomplice testimony, by reason of the fact that it per se takes those who would otherwise be accomplices under said law out of such category and exempts them in the particular instance from the taint ordinarily resulting from their criminal connection with the subject-matter- of the crime. Such statute must be strictly construed. It cannot be held to go to the extent of freeing a witness who is tainted as an accomplice by reason of any other connection with the transaction or the subject-matter of the crime such as that it would make of him an accomplice but for the application of the terms of section 2c, supra. When such witness illegally made the liquor, he violated the law. If thereafter he jointly sold, transported, possessed, furnished, etc., such liquor, and was used by the. state as a witness against other parties acting with him in such transaction, he would be an accomplice by virtue of his having manufactured such liquor, and in such case the law applicable to the necessity for the corroboration of accomplices should be given to the jury in the charge. Speculation as to the purpose of the Legislature in not exempting the seller, the manufacturer, etc., of intoxicating liquor from the category of accomplices, would seem to benefit us little inasmuch as the lawmakers did not so exempt them.

An accomplice is one who testifies in behalf of the state, and who was under the law either a principal, accomplice, or accessory to the crime then under investigation, whether his connection with it be by unlawful act or omission, transpiring either before, at the time of, or after, the commission of the offense, and whether he was present and participating in the particular crime, charged would make no difference. This proposition is supported by numerous authorities cited by Mr. Branch in section 702 of his Annotated P. C.

That the maker of whisky, who thereafter sells, transports, etc., same is comprehended by the above definition, appears to us too plain- for argument. Having thus connected himself with the liquor by illegally making same; we do not think any application of the terijns of section 2c, supra, could be made to him when used as a witness against some one to whom he delivers the liquor or sells it for the purpose of being transported oír possessed, etc., so that he could be said* to be not an accomplice. To .so hold woul/d be to extend the application of the rule laid down in section 2c to persons not therein named, and to whom the exception could not be held to fairly apply.

It follows-that in our opinion the learned trial judge erre,d in not giving the special charge asked and in not instructing the jury that McMillan was an accomplice.

For this error, the judgment will be reversed, and the cause remanded.'

On Motion for Rehearing.

The state moves for a rehearing, urging that our holding that the principal state witness was an accomplice was an incorrect' interpretation of our liquor laws in that regard. It is insisted that, even though one had criminally connected himself with the manufacture, etc., of liquor, if he subsequently became connected with the same liquor as a transporter, etc., this would remove him -from the domain of an accomplice when undertaking to testify to a state of case involving the subsequent transaction. We see no reason to change our conclusion as announced in the original opinion. The state witness in question manufactured the liquor. We cannot bring ourselves to conclude that, if thereafter he jointly transported or possessed said liquor, and the state, in an effort to convict the party or parties so jointly transporting or possessing such liquor with the manufacturer, should see fit to use the manufacturer of the liquor as a witness, he should be removed from the domain of accomplice witnesses by the simple statement in the amended liquor law that the purchaser, transporter, etc., is not to be regarded as an accomplice

The motion for rehearing will be overruled. 
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