Robert v. State , 88 Tex. Crim. 488 ( 1920 )

This case having heretofore been reversed and remanded in an opinion by Judge DAVIDSON, the State, by the able district attorney of Harris county, E.T. Branch, has presented a motion for rehearing, urging that the former opinion was erroneous in holding that the purchaser of intoxicating liquor, under what is known as the Dean law, is an accomplice. We are referred to the Sears case, 35 Tex.Crim. Rep., in which this court announced, in an opinion by Judge DAVIDSON, that the purchaser of intoxicating liquor was not an accomplice. In that case the prosecution was for selling liquor to a minor, and the statute under which that prosecution arose did not make the minor guilty of an offense in buying. We are also referred to the Berlew case, 88 Tex.Crim. Rep., 225 S.W. Rep., 518, an opinion by Judge LATTIMORE, where the prosecution was under the constitutional amendment adopted in 1919. That constitutional amendment was made self-operative, and penalty attached to the manufacture, sale, barter and exchange of intoxicating liquors, but was silent as to the status of a purchaser, and the prosecution in the Berlew case was under the self-operative provision, and prior to the enactment of the Dean law. But now a vastly different state of affairs exists. The prosecution in this case is under the Dean law, which was passed after the constitutional amendment was adopted, and to enforce its provisions, and by the terms of that law, the purchaser as well as the seller is made to suffer the penalty for its violation. Mr. Branch, in Sec. 319 of his Criminal Laws of Texas, we think, announces the correct rule: "An ``accomplice' as used in connection with the testimony of a witness who requires corroboration, includes . . . all persons connected with the crime by unlawful act or omission, transpiring either before, at the time of, or after the commission of the offense, and whether such witness was present or participating in the crime or not." A sale of intoxicating liquor is the transfer of title of property from one person to another, and the purchaser is surely connected with the sale; is present and participating, and under the Dean law is made to suffer the same penalty as the seller. We cannot agree to the State's contention, and adhere to the original opinion that the purchaser of intoxicating liquor sold in violation of the Dean law is an accomplice witness. Franklin case, 88 Tex.Crim. Rep., decided January, 1921.

The State further in its motion for rehearing asks that in the event we still hold as heretofore indicated, that the motion for rehearing be granted and the judgment affirmed because a failure of the trial judge to charge on the law of accomplice testimony was not calculated to injure the rights of appellant as required by Article 743 C.C.P., because there is no question that appellant made the sale to Lewis as charged in the indictment, as shown by appellant's confession introduced in evidence. The record does show a confession by appellant admitting the sale to Lewis, and the contention of the State is plausible that no harm could have come to him from the error of the court in failing to charge on accomplice testimony, because of his own confession. We would be inclined to look with some favor on this suggestion in the motion for rehearing if the testimony of the accomplice witnesses could be eliminated and there still remained in the record sufficient evidence to show appellant's guilt; but an examination of the statement of facts discloses that outside of the testimony of the two accomplices witnesses and the appellant's confession, there is no testimony showing the commission of the alleged crime, to-wit: the unlawful sale of liquor. If the accomplice testimony be eliminated, there remains only the confession, and this brings us face to face with the principle of law long established that the corpus delicti, or crime itself, cannot be established by the confession alone of the party charged with the commission of the crime. Under this state of the record, it being necessary for the prosecution to rely upon the accomplice testimony to make its case, we cannot give assent to the proposition that no harm resulted to appellant for failure to charge on accomplice testimony, and the motion for rehearing will be overruled.

Overruled.