Gates v. State , 113 Tex. Crim. 244 ( 1929 )

According to the testimony of the State's witnesses the appellant delivered to Roy Hedrick a pint of whisky for which he was paid by Hedrick $2.00, of which amount Hedrick furnished $1.50 and Kalmback furnished fifty cents. According to the appellant's testimony, he and Headrick each contributed a dollar which was placed in the possession of the appellant and which, by agreement, was designed should be used in the purchase of liquor. Appellant knew a Mexican from whom whisky could be bought, and using the joint funds, he did go to the Mexican and purchase the whisky. The appellant carried the whisky to the place of meeting and after drinking some of it delivered a bottle containing the whisky to Headrick. The statute, Art. 666, P. C., 1925, denounces the receiving of intoxicating liquor, when received for the purpose of sale, as an offense. There is no suggestion in the record that Headrick received the whisky for the purpose of sale. While it may be, under certain circumstances, that one who receives whisky, though not for the purpose of sale, would be so connected with the criminal act of another as to give his testimony the taint of an accomplice. Ordinarily, however, the bare fact that one received whisky would not characterize him as an accomplice witness. Bailey v. State, 104 Tex.Crim. R.; Meyer v. State, 108 Tex.Crim. R.. Headrick's testimony shows that he purchased whisky from the appellant. The appellant's testimony is to the effect that, using the joint money of himself and Headrick, he bought the whisky from a Mexican, carried it to Headrick and delivered it to him in accord with their previous agreement. As we comprehend it, the evidence of both the State and the appellant show a delivery of the whisky to Headrick by the appellant. Such evidence likewise shows that Headrick was the purchaser, either from the appellant direct or from the Mexican through the appellant's agency. In, either event, standing in the attitude of a purchaser, Headrick would be exempt from the operation of the accomplice statute under Art. 670, P. C., 1925. The fact that the jury, on the evidence, concluded to convict the appellant of the offense of delivering the whisky and acquitting him of the offense of selling whisky is deemed of no weight in solving the legal question presented.

The motion for rehearing is overruled.

Overruled.