Dean v. State

On more mature consideration and careful examination of the facts in this case we have concluded ourselves in error in holding that the witness McIntosh was not an accomplice, and that the exception to the court's charge for its failure to instruct the jury that he was such accomplice, was well taken. The testimony shows that he was present at the alleged sale of whiskey and that he aided in the transaction. He testified that appellant poured the whiskey out of a keg into five fruit jars and that as he did so witness moved the jars out of the way one at a time, and when it was all poured out that he took the jars and put them over the fence in the weeds. He further testified on cross-examination that he went and got the empty fruit jars out of the cellar on said occasion as well as removed them after they were filled. As stated in the original opinion, this transaction took place before the taking effect on November 15, 1921, of the amendment to the Dean Law exempting the purchaser from being an accomplice. It occurs to us that from his own testimony McIntosh was necessarily acting in the transaction either with appellant in the sale of whiskey or with Lyons in its purchase. In either event he would be an accomplice. All co-conspirators who act together in the commission of a crime, if witnesses in regard to it, are accomplices.

Believing ourselves in error in the above matter, we are constrained to grant the motion for rehearing, and it is so ordered, and the judgment will be reversed and the cause remanded.

Reversed and remanded.