
    VENN v. STATE.
    (No. 6342.)
    (Court of Criminal Appeals of Texas.
    June 15, 1921.)
    1. Criminal law <@^507(l) — Witness who drank part of whisky purchased held not accomplice as matter of law.
    Where a witness who testified against accused, charged with the unlawful sale of intoxicating liquors, admitted he drank some of the whisky purchased from accused, but disclaimed any connection with the purchase, it was' not error to refuse to charge that the witness was an accomplice as a matter of law.
    2. Criminal law ®=s369(6) — In prosecution for unlawful sale of liquor possession of equipment for making is incompetent.
    In a prosecution for the unlawful sale of intoxicating liquors, evidence that accused had in his possession equipment for making such liquors tends to establish his guilt of an extraneous crime, relevant under none of the rules relating to such evidence, so that its admission in evidence was prejudicial error.
    Appeal from District Court, Upshur County; J. R. Warren, Judge.
    Will Venn was convicted of an unlawful sale of intoxicating liquors, and he appeals.
    Reversed and remanded.
    See, also, 86 Tex. Cr. R. 633, 218 S. W. 1060.
    M. B. Briggs and T. H. Briggs, both of Gil-mer, for appellant.
    R. H. Hamilton, Asst. Atty. Gen., for State.
   MORROW, P. J.

Appellant was convicted for the unlawful sale of intoxicating liquors.

The witness Dacus, the purchaser, testified to the sale, and the witness Hogg testified to facts tending to corroborate the accomplice. There was no error in refusing to charge that Hogg was an accomplice as a matter of law. He disclaimed any connection with the purchase, though he admitted that he drank some of the whisky which was acquired by Dacus. Chandler v. State (No. 6255) 232 S. W. 337, decided May 11, 1921.

Evidence was introduced that some five months' subsequent to the commission of the offense there were found upon the premises of the appellant certain articles which could have been used in the manufacture of intoxicating liquors. It appears that there was no evidence showing this equipment to have been upon the premises or in his possession or under the control of appellant at the time the alleged offense took place.

The court instructed the jury, in substance, that appellant was not charged with the possession of equipment for making intoxicating liquors, and that the testimony was admitted only to be given such weight, if any, as the jury might determine it was entitled to to aid them, if it did so, in determining whether the appellant made the sale of whisky charged in the indictment. In refusing to sustain appellant’s objection to the introduction of this testimony, we are of the opinion that there was prejudicial error committed. The evidence tended to establish appellant’s guilt of extraneous crime relevant under none of the rules excluding such evidence. Underhill’s Grim. Evidence, § 87, and cases referred to thereunder.

Because of this error, the judgment of the trial court is reversed, and the cause remanded.  