Hoffman v. State , 126 Tex. Crim. 114 ( 1934 )

Appellant predicates his motion for rehearing upon the sole proposition that the court should have submitted to the jury the issue whether the witness Wagner was an accomplice. We still remain of the opinion that the evidence fails to raise such issue. Gibson was Wagner's friend and had come to town with Wagner in the latter's car. The conclusion from Wagner's evidence is that Gibson had made arrangements with appellant to secure from him some whisky: that Wagner knew it and at Gibson's request drove to the place where appellant got the whisky and delivered it to Gibson in the car. A reasonable conclusion would be that appellant was selling the whisky to Gibson and that Wagner knew it, but there is no evidence that he acted with the seller. The evidence is all the other way and indicates that he was assisting the purchaser. Article 666 P. C. makes one guilty of an offense who receives intoxicating liquor for the purpose of sale. If Wagner could by any construction of the evidence be characterized as a receiver of whisky — which appellant insists that he was — it falls short of raising the issue that he received it for the purpose of sale. Article 670 P. C. exempts from the general statute of accomplice witnesses the purchaser, transporter or possessor of intoxicating liquor. A person might be a possessor of liquor without being a receiver, but it is difficult to imagine one being a receiver who is not also a possessor. Dawson v. State, 97 Tex.Crim. Rep., 261 S.W. 1050, relied on by appellant does not, we think, support his position. The party there held to have been an accomplice witness was shown to have been a co-seller of intoxicating liquor and therefore not within the exceptions of article 670 P. C. The cases of Gates v. State, 113 Tex.Crim. Rep., 20 S.W.2d 198, and Sherman v. State, 115 Tex.Crim. Rep., 28 S.W.2d 801; Dennis v. State, 108 Tex.Crim. Rep., 2 S.W.2d 223, are thought to be much nearer in point and support our view that Wagner was not an accomplice witness and that no issue upon that point was raised by the evidence.

The motion for rehearing is overruled.

Overruled.