
    Forest Kilker v. The State.
    No. 7394.
    Decided June 29, 1923.
    Rehearing denied October 17, 1923.
    1. — Selling Intoxicating Liquor — Accomplice—Purchaser.
    By the express terms of the statute, the purchaser, transporter or possessor of intoxicating liquor when a witness, is not an accomplice.
    
      2. —Same—Rehearing—Statutes Construed.
    Chapter 61, Section 1, Acts of Thirty-Seventh Legislature and Called Session, does not make the mere act of requesting another to give or to sell him intoxicating liquor an offense.
    3. —Same—Purchaser of Liquor.
    One who buys intoxicating liquor is not under the disqualification of an accomplice witness, even though the same be made in response to the request.
    4. —Same—Words and Phrases — Solicit.
    The word “solicit,” as embraced in the statute, is not sufficiently comprehensive to denounce such act as a crime.
    Appeal from the District Court of Brown. Tried below before the Honorable J. 0. Woodward.
    Appeal from a conviction of selling intoxicating liquor; penalty, one year imprisonment in the penitentiary.
    The opinion states the case.
    
      A. L. Kirkpatrick, and Scott & Davis, for appellant.
    On the question of accomplice, Bush v. State, 151 S. W. Rep., 554; Huggins v. State, 210 id., 804.
    
      R. G. Storey, Assistant Attorney General, for the State.
   HAWKINS, Judge.

— Conviction is for selling intoxicating liquor; punishment one year in the penitentiary.

The proof is positive that appellant sold whisky to one C. J. Skiles the latter’s brother also being present. The Skiles boys were working for the officers. This is undisputed. They solicited the sale of the whisky. The only contention is that they were accomplices, and that the conviction cannot stand on their testimony. The authorities cited by appellant would have been in point and controlling prior to the Act of the thirty-seventh Legislature, 1st and 2d C. S., page 233, Section 2c. By the express terms of that enactment the purchaser, transporter or possessor of intoxicating liquor when a witness, is not an accomplice.

The judgment is affirmed.

Affirmed.

ON REHEARING.

MORROW, Presiding Judge.

— Chapter ,61, Sec. 1, Acts of the thirty-seventh Leg., Second Called Session, does not make the mere act of reauestine another to give or to sell him intoxicating liquor an offense. One who buys intoxicating liquor is not under the disqualification of an accomplice witness, even though the same be made in response to the request.

The word “solicit” as embraced in the statute mentioned is not sufficiently comprehensive to denounce such act as a crime. See Penal Code, Art. 6; also Webster’s New International Dictionary.

The motion is overruled.

Overruled.  