Colter v. State

Conviction is for the sale of whisky. Punishment was assessed at two years in the penitentiary.

Appellant filed an application requesting that the issue of suspended sentence be submitted to the jury. The application contains no averment that accused was under twenty-five years of age. In refusing a requested instruction upon the issue the learned trial judge certifies that he declined to submit the question because accused was more than twenty-five years old. The correctness of the court's action is manifest from Article 588 1/4a4, Vernon's 1922 Supplement; Robinson v. State,92 Tex. Crim. 527, 244 S.W. Rep., 599; Davis v. State, 93 Texas Crim, Rep., 192, 246 S.W. Rep., 395; Hooper v. State,94 Tex. Crim. 278, 250 S.W. Rep., 694.

The contention is made that the court should have instructed the jury that the witness Wilson was an accomplice, or should have submitted the question to the jury under an appropriate charge. Wilson's testimony is in substance, that appellant sold the whisky to one Frederick; that it was to be delivered at Wilson's barn; that Frederick left a check with Wilson which he turned over to appellant when the whisky was placed in the barn. Frederick's testimony would make Wilson his agent in the purchase of the whisky, which is borne out by the evidence of appellant that his transaction was with Wilson. We think neither charge called for. Whatever Wilson's connection with the matter may have been he was acting with and for the purchaser. The purchaser of intoxicating liquor is no longer an accomplice. See Article 589 1/4a3, Vernon's 1922 Supplement; Id. Sec. 2, Acts. 1919, 36th Leg. 2d. C.S. Ch. 78; Cortinas v. State, 93 Tex. Crim. 52 -64, 245 S.W. Rep., 911; Plachy v. State, 91 Tex. Crim. 405, 239 S.W. Rep. 979.

The state's evidence on direct examination showed that Wilson and Frederick went to Cedarville shortly before Christmas of 1921 and there met appellant, where Frederick contracted with him for five gallons of whisky to be delivered in Terrell at Wilson's barn; it was so delivered and Wilson gave appellant Frederick's check for $75 in payment therefor. Appellant admitted a transaction involving five gallons of whisky but asserted that he was acting only as accommodation agent for Wilson, and that the whisky delivered at the latter's barn was not sold by appellant but was purchased by him for Wilson from a man camped near the Asylum grounds in Terrell. In this state of the record the state in rebuttal was permitted to prove over objection that about July 1921 appellant sold a quart of whisky to Frederick at or near Cedarville. It is well settled that in prosecutions for the illegal sale of intoxicating liquor other sales cannot be shown unless facts are developed which make such other transaction admissible under an exception to the general rule excluding proof of other offenses. Many cases illustrating the rule are cited under Section 166, Branch's Ann. P.C.; See also Ross v. State, 93 Texas Crim. Rep., 61, 245 S.W. Rep., 680; Burton v. State, 93 Tex. Crim. 335, 247 S.W. Rep., 869. Where accused admits in whole or in part the transaction upon which the state relies for conviction, but defends on the ground that he was acting as agent for the purchaser, it appears under former decisions of this court to present one of the exceptions making permissible proof of other sales to aid the jury in solving the question of alleged agency. Ross v. State, 72 Tex.Crim. Rep.; 163 S.W. Rep., 433; James v. State, 62 Tex.Crim. Rep., 138 S.W. Rep., 612; Columbo v. State, 65 Tex.Crim. Rep., 145 S.W. Rep., 910.

Finding no errors in the record the judgment is affirmed.

Affirmed.

ON REHEARING. November 14, 1923.