
    THOMAS v. STATE.
    (No. 6150.)
    (Court of Criminal Appeals of Texas.
    March 9, 1921.
    Rehearing Granted April 6, 1921.)
    1. Criminal law <&wkey;1144('/2)— Defendant presumed in jail, when record fails to show recognizance.
    When the record on appeal in a felony case contains no recognizance or bail bond, the presumption is, unless the contrary affirmatively appears, that appellant is in jail, and the appeal will not be dismissed for failure of the record to show such fact.
    2. Criminal law <&wkey;l086(!3) — Appeal dismissed, when sentence not in record.
    When the record does not contain any sentence, the appeal will be dismissed.
    On Motion for Rehearing.
    3. Criminal law <&wkey;507( I)— Purchaser of liquor illegally sold is “accomplice.”
    Under the Dean Law, the purchaser of liquor illegally sold is guilty of a violation of the law, and is an “accomplice,”' and a conviction for unlawful possession on his testimony cannot be sustained, unless it is corroborated as required by law. '
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Accomplice.]
    4. Criminal law &wkey;>511 (2) — Requisites of corroboration of accomplice stated.
    Evidence corroborating an accomplice, in order to be sufficient, must of itself tend to connect accused in a guilty way with the transaction in question.
    5. Criminal law &wkey;>5ll(4) — Corroboration of testimony of purchaser of whisky held insufficient.
    On a trial for possessing liquor unlawfully, the testimony of a witness that he went with a purchaser of whisky, but did not go to defendant’s house, and did not see defendant, or know from whom the purchaser got the whisky, which he brought back from the house, was not sufficient corroboration of the testimony of the purchaser.
    Appeal from District Court, Kaufman County; Joel R. Bond, Judge.
    James Thomas was convicted of the offense of possessing liquor unlawfully, and he appeals.
    Reversed and remanded on rehearing.
    Wynne & Wynne, of Kaufman, for appellant.
    C. M. Cureton, Atty. Gen., and C. L. Stone, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Kaufman county of the offense of possessing liquor under the terms of what is known as the Dean Law (Acts 2d Called Session, 36th Legislature, p. 228), and his punishment fixed at confinement in the penitentiary for a term of one year.

The state has filed a motion asking for the dismissal of this case, because the record shows neither a recognizance nor the fact that appellant is in jail. The authorities cited by the state in support of this motion will be found upon examination to be misdemeanor cases, and we understand the rule contended for by the state to apply only to misdemeanor cases. On appeal in .a felony case, when the record does not contain a recognizance and bail bond, the presumption of this court is, unless the opposite is made to affirmatively appear, that the appellant is in jail. That portion of the motion of the state is therefore denied.

The state .also moves to dismiss this appeal, because the record does not contain a sentence. An examination of the record shows this ground of the motion to be well taken.

For the reason that the record contains no sentence, the appeal will be dismissed.

On Motion for Rehearing.

This case was dismissed by us at a former day of this term because of the fact that the record did not contain a sentence. This defect in the record has now been corrected, and the case will be considered on its merits.

The case mu^t be reversed, because of the insufficiency of the testimony to support the judgment. A witness named Tom Scott testified that on a certain'night S. M. Johnson drove witness and one Mr. Shannon out to a certain point on the railroad where he and Shannon got out of the car and went in the direction of appellant’s house; that when they got within about 150 yards of the house Shannon stopped, and witness went alone to the house of Thomas, and went into the house and bought from Thomas certain whis-ky. The witness Shannon testified that he went with Scott on the night in question, but did not go to the house of appellant, and did not see appellant, or know from whom Scott got the whisky which he brought back from said house. Witness Johnson testified that he drove Shannon and Scott out to a certain point, and they left his car, and came back presently with some whisky; that he did not know from whom they obtained same.

We have held that the purchaser of liquor, who illegally buys the same .under the terms of what is known as the Dean Act, being equally guilty of a violation of said law by reason of said purchase, becomes an accomplice, and that a conviction upon his testimony cannot be supported unless the same is corroborated as required by law. Westbrook v. State, No. 5959, 227 S. W. 1104, decided at this term. It is well settled that, in order to be sufficient, the corroborating evidence must of itself tend to connect the accused In a guilty way with the transaction in question.

There is no testimony in this record aside from that of Scott which indicates any person or individual from whom he obtained the liquor, and we would hold, therefore, that the evidence of Scott is without corroboration, and for this reason the Judgment of the trial court must be reversed, and the cause remanded; and it is so ordered. 
      <SS=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     