
    FRANKLIN v. STATE.
    (No. 6059.)
    (Court of Criminal Appeals of Texas.
    Jan. 12, 1921.)
    1. Criminal law <&wkey;507(l) — Purchaser of liquor is an “accomplice.”
    The term “accomplice,” as applied to witnesses, means one who either as principal, accomplice, or accessory is connected with the crime by unlawful act or omission before, at, or after the offense, and the Dean Law, enacted to enforce Const, art. 16, § 20, prohibiting the sale of intoxicating liquors, does not exempt the purchaser of intoxicating liquors from such witness rule, as did Pen. Code 1911, art. 602.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Accomplice.]
    2. Criminal law ¡&wkey;510 — Witnesses purchasing the liquor illegally sold must be corroborated.
    A conviction for the unlawful selling of intoxicating liquors cannot be had under the Dean Law, in view of section 31 thereof, making purchase unlawful, and section 40, which seeks to compel offenders to testify, and of Pen. Code 1911, arts. 74^88, defining principals, accomplices, and accessories, where the witness purchasing the liquor was not corroborated as required by Code Cr. Proc. 1911, art. 801.
    3.Intoxicating liquors <&wkey;l3, 132 — State law held not void for conflict with Eighteenth Amendment and Volstead Act.
    The Dean Law, relating to intoxicating liquors, is not void because of Const. U. S. Amend. 18, and the passage of the federal law known as the Volstead Act, because the state law gives to intoxicating liquors a definition varying from that prescribed by Congress, and because the penalties of the state and federal laws are different.
    Appeal fromt District Court, Kaufman County; Joel R. Bond, Judge.
    Eugene Franklin was found guilty of selling intoxicating liquors in violation of law, and he appeals.
    Reversed and remanded.
    Wynne & Wynne, of Kaufman, for appellant.
    Alvin M. Owsley, Asst Atty. Gen., for the State.
   MORROW, J.

The judgment appealed from condemns the appellant to confinement in the penitentiary for selling intoxicating liquors in violation of the act of the Legislature known as the Dean Law (chapter 78, Act Thirty-Sixth Legislature, First and Second Called Session).

From the testimony of the only witness used in the case, it appears that he bought from appellant a quart of whisky for beverage purposes under circumstances making it evident that the purchaser knew the transaction was unlawful.

The proposition is advanced that to support the conviction corroboration of the witness was essential.

Referring to article 602, Penal Code, the state combats the correctness of this contention. In that statute it is said:

“When the sale of intoxicating liquor is prohibited in any county, justice precinct, [or] school district, * * * the fact that a person purchases intoxicating liquor 'from one who sells it in violation of the provisions of this chapter shall not constitute such person an accomplice.”

This section of the statute is found in the chapter governing the enforcement of the local option prohibition law, which was passed to give effect to the local option clause of the Constitution. Upon the amendment of the ‘Constitution eliminating that clause, the chapter of the Penal Code giving it effect was eliminated subject to the reservation permitting the prosecution of pending cases.

The Dean Law was enacted with the purpose of enforcing the amended section of the Constitution. See article 16, § 20. The Legislature failed to embrace in the- so-called “Dean Law” a provision exempting the purchaser of intoxicating liquors, unlawfully sold, from the operation of the general rule defining accomplices and controlling their testimony. Under this general rule, as it pertains in this state to witnesses, the term “accomplice” means a person who, either as principal, accomplice, or accessory, is connected with the crime hy unlawful act or omission on his part, transpiring either before, at the time of, or after' the commission of the offense. Phillips v. State, 17 Tex. App. 169, and other cases collated in Vernon’s Tex. Crim. Statutes, vol. 2, p. 732.

In chapters 1, 2, and 3, title 3, of the Penal Code, principals, accomplices, and accessories are defined; and one is a principal who, “when the offense is actually committed by another, is present and, knowing the unlawful intent, aids by acts, or encourages by words, the person actually engaged in the commission of the unlawful act”; and it is said “that any person who advises or agrees to the commission of an offense, and who is present when the same is committed, is a principal thereto, whether he aids or not the illegal act.” An accomplice is one who, “before the act is committed, agrees with the principal offender to aid, or promises any reward, favor, or inducement to procure the commission of the offense.” That one who buys intoxicating liquors, knowing that they are sold in violation of the law, is particeps criminis, within the meaning of the statutes mentioned, as construed by the decisions of this court, seems obvious.

The act of the purchaser in buying the liquor necessarily aids the seller in committing the offense. It may be added that section 31, chapter 78, Acts of the 36th Legislature, First and Second Called Session, declares that it shall be unlawful for any person to purchase for himself or another intoxicating liquors sold or bartered in violation of this act. It would seem, therefore, that, even if the purchaser was not a principal offender with the seller, his testimony would, by reason of the section named, require corroboration. The fact that the seller is guilty of one offense and the purchaser of another, if that be the proper construction, would not militate against the application of the statute on accomplice testimony, A similar application of the rule arises in cases in which the thief and the receiver of the stolen goods, though committing separate offenses, are each, when‘they become witnesses against the other, within the purview of article 801, Code of Criminal Procedure. Johnson v. State, 58 Tex. Cr. R. 244, 125 S. W. 16; Miller v. State, 4 Tex. App. 251; Crutchfield v. State, 7 Tex. App. 65.

Article 801 of our Code of Criminal Procedure declares that “a conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence tending to .connect the defendant with the offense committed.” To obviate the effect of this statute in the enforcement of the local option law, the Legislature passed article 602, to which reference has been made. In the act under which this prosecution is had no provision similar to article 602, supra, occurs. There is found therein section 40, which seeks to compel all offenders to testify, when called upon, and to grant immunity from punishment i^>r acts, disclosed by the evidence so given. Such testimony would require corroboration under the statutory rule declared in article 801, supra. The ruling of the trial court to the contrary in the instant case, in our opinion, constitutes error requiring reversal of the judgment.

The appellant sought to quash the indictment upon the ground that since the adoption of the Eighteenth Amendment to the United States Constitution and the passage of the law known as the “Volstead Act” (41 Stat. 305) the act of the Legislature upon which the prosecution is founded, being out of harmony with the federal law upon the subject of intoxicating liquors, 'in that the state law gave to intoxicating liquors a definition varying from that prescribed by Congress, and also fixed a penalty for the sale of intoxicants different from that fixed by Congress is void. This relates to a matter upon which the court expressed an opinion adverse to the contention of the appellant in the recent case of Ex parte Gilmore.

Because of the error pointed out, the judgment is reversed and the cause remanded. 
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