
    THOMAS v. STATE.
    (No. 6152.)
    (Court of Criminal Appeals of Texas.
    March 9, 1921.
    Rehearing Granted March 30, 1921.)
    {. Criminal law <&wkey;!086( 13) — Appeal not entertained when sentence not in record.
    Under Vernon's Ann. Code Cr. Proc. 1916, art. 856, the court cannot entertain an appeal, when the record fails to show that sentence was ever pronounced.
    On Motion for Rehearing.
    2. Criminal law <&wkey;5!l(9) — Testimony of purchaser of whisky held not corroborated.
    Testimony of an accomplice to the purchase of whisky from defendant is not corroborated by testimony of another witness that he carried the purchaser and a third party out to a point, where they left his car and walked off, that he did not know where they went, and that when they came back they had whisky.
    3. Criminal law &wkey;>507(I) — Purchaser of whis-ky illegally sold is “accomplice.”
    On a trial for selling intoxicating liquors in violation of the Dean Law, the purchaser is an accomplice whose testimony must be corroborated.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Accomplice.] i
    
    Appeal from District Court, Kaufman County; Joel R. Bond, Judge.
    James Thomas was convicted of selling intoxicating liquor, and he appeals.
    Reversed and remanded on rehearing.
    Wynne & Wynne, of Kaufman, for appellant.
    • C. M. Cureton, Atty. Gen., and C. L. Stone, Asst. A tty. Gen., for the State.
   HAWKINS, J.

The Assistant Attorney General calls attention to the fact that the record in this case fails to show any final judgment, in that there is an absence of a showing that sentence was ever pronounced upon the defendant, or notice of appeal given by him to the Court of Criminal Appeals. An examination of the record discloses such to be the case. Vernon’s C. C. P. art. 856, and cases therein cited. This is a prerequisite to this court entertaining an appeal.

The appeal is ordered dismissed.

On Motion for Rehearing.

The appeal in this case at a former day of the term was dismissed because the record failed to show the final judgment, in that no sentence appeared to have ever been passed upon the appellant. He files a motion for rehearing, attaching thereto a certified copy of the sentence, and requests that the appeal be reinstated and the case disposed of on its merits.

Appellant was convicted for violating what is conveniently termed the provisions of the Dean Law (Acts 36th Leg. 2d Called ,Sess. c. 78), and his punishment assessed at one year in the penitentiary. Only two witnesses testified in the case, the purchaser of the intoxicating liquor, and one other witness by the name of Griffin, who does not pretend to know where the purchaser procured the whis-ky, he simply stating that he carried the purchaser and another party out on the road, and that they got out of the car and walked off, and he did not know where they went, and when they came back they had the whisky.

Counsel for appellant requested the court to charge the jury that the purchaser was an accomplice, which the court refused to do; this case having been tried prior to the decision of this court in the Franklin and Roberts Cases. There is not the semblance of corroboration of the accomplice -in this case, and under the authority of the Franklin Case, 227 S. W. 486, and the Roberts Case, 228 S. W. 230, decided at a more recent date and not yet [officially] reported, the purchaser of intoxicating liquor under the Dean Law is an accomplice; that law having fixed upon the purchaser himself a penalty. The charge requested should have been given, and under the facts of this case as disclosed by the record the court ought to have instructed the jury to return' a verdict of not guilty, because there was no testimony in any way' corroborating the accomplice.

The former dismissal of this appeal will be set aside, the case reinstated, and the judgment of the trial court reversed, and the ■ cause remanded. 
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