It is strenuously insisted that the allegation in the indictment being of a sale to Crossley, Gorman and Speer and the court having submitted to the jury appellant's guilt predicated upon a sale to Crossley, Gorman and Speer, that the conviction can not stand because the proof does not show a sale to all three of said parties. The testimony shows the three named agreed on the night in question to go and procure some whisky. They each and all agreed that they would contribute to the payment for the liquor. They went together to appellant's house. One of them called him out and asked him the price of the liquor. Failing to agree, another one of the three took up the negotiations and consummated the purchase. All three were present and present in pursuance of the common object and all three carried the liquor away and divided it among themselves when they reached town and each man paid his quota of the price. Had the law been in the condition it was prior to the amendment exempting the purchaser from being an accomplice, there could be no question but that each of the three named would be an accomplice, each having contributed to the purchase of the liquor and being present when the same was purchased, and having received his part of same. We do not conceive it necessary to make a legal sale to three parties, that each of said three take part in the conversation resulting in the sale. An acting together of the three *Page 57 coupled with their personal presence at the place of the sale, their reception of the liquor, their division of same, and their joint payment for same, seems to make out a state of facts which meets the allegations in the indictment. The authorities cited by appellant but hold that the indictment must name the purchaser, and that the proof must meet the allegation.
The motion for rehearing will be overruled.
Overruled.
ON SECOND MOTION FOR REHEARING.