Appellant was convicted in the Criminal District Court of Williamson county of selling intoxicating liquor, and his punishment fixed at one year in the penitentiary.
The evidence seems to amply support the verdict. According to the State's case three young men went to appellant's house and bought from him a half gallon of whisky and some wine for which they paid $8.00. The liquor was intoxicating. On behalf of appellant there was no testimony introduced denying that given by the State witnesses.
Appellant complains that he was denied the privilege of asking State witness Wininger if he was not charged with assault to rob in 1909. It is made to appear from the bill of exceptions that when the question was asked the jury were retired and in the jury's absence the witness stated to the court that a complaint had been filed against him in 1909 for assault to rob but that it had never progressed beyond the justice court; that the grand jury had met and adjourned and no indictment had ever been returned against him. Mr. Branch cites a number of cases on page 101 of his Annotated P.C. sustaining the proposition that where a party is charged *Page 119 with felony by complaint only and sufficient time has elapsed for indictment and none has been presented, proof that such complaint was made against him is not admissible to impeach him. We do not think the trial court erred in not instructing the jury that the witness Wininger was an accomplice. Our statute expressly exempts the purchaser of liquor from being deemed an accomplice. We further observe that there was no exception to the court's charge on this ground and no special charge asked. However, if such had been the case it would not have been necessary for the court to so charge, under our present statute.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
ON REHEARING. December 5, 1923.