
    DAWSON v. STATE.
    (No. 8413.)
    (Court of Criminal Appeals of Texas.
    May 7, 1924.)
    Criminal law <&wkey;>780-(2) — In liquor prosecution, one serving defendant’s customers held “accomplice,” requiring instruction on accomplice testimony.
    In prosecution for possessing liquor for purpose of sale in which state elected to rely on particular sale of whisky, one serving such whisky held an “accomplice,” necessitating instruction. on accomplice testimony, and not within Acts 37th Leg. (1921) 1st Called Sess. e. 61, § 2c (Vernon’s Ann. Pen. Code Supp. 1922, art. 588}4a3), providing that “purchaser, transporter, or possessor of any liquors prohibited herein shall not be held * * * an accomplice.” ,
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Accomplice.]
    Appeal from District Court, Stephens County; C. O. Hamlin, Judge.
    Phil Dawson was convicted of possessing intoxicating liquor for the purpose of sale, and he appeals.
    Reversed and remanded.
    V. L. Shurtleff, of Breckenridge, for appellant.
    
      E. L. Routh, Dist. Atty., of Breckenridge, an'd Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for possessing intoxicating liquor for the purpose of sale, with punishment assessed at three years in the penitentiary.

G. W. Martin testified that he had been to appellant’s place, and had there purchased whisky, paying 50 cents a drink for it; that both appellant and A1 Nolan had served him with the whisky; that he had seen both Nolan and appellant deliver whisky to others and receive pay therefor. R. E. Martin was present with G. W. Martin and testified substantially to the same facts. Nolan testified that he was living with appellant; that whisky was kept there; that witness had seen it sold to G. W. and R. E. Martin and to other parties, and had served customers with whisky under appellant’s direction; that on the night the Martin boys were present and purchased whisky witness himself got it from the cupboard behind a counter where it was always kept. The state elected to rely for a conviction upon the possession of whisky by appellant at the time the two Martins claimed to have purchased it, and the jury was so instructed.

The court did not charge that Nolan was an accomplice and that it was necessary to corroborate him before a conviction could be obtained, but, on the contrary, instructed the jury that the “purchaser or possessor of any of the liquors prohibited from sale or possession shall not be held in law or in fact to be an accomplice” witness. Exception to the charge was specifically lodged for the omission to instruct that Nolan was an accomplice. It is admitted by the state that Nolan comes within the general rule of an accomplice, and that the omission to so instruct the jury was erroneous unless chapter 61, Acts 37th Leg. (1st C. S.) p. 233 (Vernon’s Ann. Pen. Code Supp. 1922, art. 588% et seq.), brings the witness within the exceptions there provided. Section 2c (article 588% a3) of the act in question reads:

“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.”

When Nolan was called to the witness stand by the state, his attorney made the statement that a similar ease was pending against the witness and requested permission to advise Mm as to his rights not to testify to any mater which might incriminate him, whereupon the district attorney, for the state, promised immunity to said witness upon any matter about which his evidence might incriminate or involve him. The record does not more specifically show for what particular offense Nolan stood indicted, but it is dear that it was for some offense growing out of whisky transactions at appellant’s house. “All persons are principals who are guilty of acting together in the commission of an offense.” Article 74, Pen. Code. Two or more parties may be coprincipals in manufacturing, selling, transporting, or possessing for the purpose of sale, intoxicating liquor, and as such coprincipals may be either jointly or separately indicted and prosecuted as such. While the specific charge for which appellant was upon trial was possession of liquor for the purpose of sale, yet the particular transaction upon which the state elected to rely to establish that fact was a sale of whisky to the Martin boys, and their evidence as well as Nolan’s made the latter a coseller with appellant of that particular whisky. Under this state of the record, we think it immaterial just what specific offense the state may have selected out of the transaction and procured an indictment for against Nolan. The fact remains that by his own testimony as well as that from the two Martins he was acting with appellant as a “seller” of whisky. By the particular terms of the law (section 2c, 1st C. S. 37th Leg. p. 233) upon which the state must rely to relieve Nolan of being an accomplice witness, a “seller” is not brought within the exception to the general rule-which so classifies him.

Under the facts disclosed by the record, the court should have told the jury that Nolan was an accomplice witness, and instructed them upon that issue; for failure to do so, the judgment must be reversed, and the cause remanded.  