Bird v. State

Appellant admits that under new article 588 1/4 A3 Penal Code, Vernon's 1922 Supp. (being Sec. 2c Acts 37th Leg. Chap. 61, 1st and 2d C.S.) the witness Queen would not be held as an accomplice witness as he is the alleged purchaser; but insists that the witness Wininger does not come within the immunity specified in said provision of the law, and therefore as to him the court committed error in failing to charge on accomplice testimony. The article in question provides:

"Upon a trial for a violation of any of the provisions of this Chapter, the purchaser, transporter, or possessor of any of the liquors prohibited herein shall not be held in law or in fact to be an accomplice, when a witness in any such trial."

It may be admitted that unless Wininger comes within one of the classes of witnesses specified, but is otherwise brought within the compass of an accomplice witness, the law would require a charge upon the issue. The question is not controlled solely by the fact that the indictment alleges Queen to have been the purchaser, and not that he and Wininger were joint purchasers; but the solution must turn upon an inquiry as to what was Wininger's true relation to the transaction. We think the fallacy of appellant's position can be best demonstrated by looking at the situation from another angle. Suppose the purchaser of intoxicating liquor was himself guilty of an offense, (as he was prior to the amendment of the "Dean Law") and the state was prosecuting Wininger as a principal in the purchase of the liquor in question, what chance would he have to escape under the proven facts? He went with Queen to purchase the whisky, knowing at the time the purpose of the journey. He in person negotiated for the sale of the whisky, gave Queen four dollars of the money to pay on it, was present when appellant delivered it to Queen, and saw the latter pay over the money a part of which was Wininger's. If these facts do not bring him within the rule of a principal in the transaction it would be difficult to conceive a case that would. If the purchaser could be prosecuted for making the purchase, and the facts bring Wininger in such relation to the sale that he could be convicted as a principal to the purchase, then we think it inescapable that the facts bring him within the class of "purchaser" under Article 588 1/4 A3, (supra) as much so as it did the witness Queen.

The motion for rehearing is overruled.

Overruled.