On a former day of the term the appeal herein was dismissed on account of a defective recognizance. A new recognizance has been filed, which is in proper form, and the case will be reinstated and considered upon its merits.
Appellant was convicted for selling intoxicating liquors in violation of the Dean law and allotted a term of one year in the penitentiary.
The State introduced Leonard Lewis and Simon Huston, and by them proved that they bought whisky at the same time from appellant. The details of the purchase are unnecessary. That each one bought whisky from appellant at the same time is the basis of the State's prosecution.
The Dean law is attacked as being in conflict with the 18th Amendment to the Federal Constitution and Volstead Act by Congress, and does not afford a basis of this prosecution. This matter has been discussed in the recent case of Ex parte Gilmore, 88 Tex.Crim. Rep., where a majority of the court held that a party may be tried under the Dean law. The writer does not concur with the majority opinion, and does not believe the Dean law valid. That case is on motion for rehearing. So far as this case is concerned a discussion of the Dean law is pretermitted.
Appellant excepted to the court's charge for failing to instruct the jury with reference to the law of accomplice. He also requested a *Page 490 special charge submitting that phase of the law with reference to those witnesses who testified they were purchasers of whisky from appellant. We are of opinion the court should have instructed the jury with reference to the law of accomplice. Under the local option statutes in vogue before the late amendment to the State and Federal Constitutions, the Legislature provided no punishment for the purchaser, and further provided that he was not an accomplice, and that his testimony, if believed by the jury, might form the predicate for conviction. Under the Dean law this is not the rule. The general statutes provide that all particepscriminis, when used as witnesses, are treated as accomplices. Independent of the general rule, which would require a charge in this case on that phase of the law, the Dean law, as found in the Acts of the Second Called Sessions of the Thirty-sixth Legislature, pp. 229 and 238, provides as follows.
"Sec. 2. That it shall be unlawful for any person, directly or indirectly, to manufacture, sell, barter, exchange, transport, export, receive, deliver, solicit or take orders for, furnish or possess, any spirituous, vinous or malt liquors, or medicated bitters, or any potable liquor, mixture or preparation, containing in excess of 1 per cent of alcohol by volume, or any equipment for making such liquors, except for medicinal, mechanical, scientific or sacramental purposes."
Sec. 31 reads as follows: "It shall be unlawful for any person within this State to purchase for himself or for another, or to receive from any carrier intoxicating liquors sold, bartered or given to him or delivered to him in violation of this Act, and such person shall be punished accordingly as provided in the penal section of this Act."
Section 36 of the same Act provides that: "Any person violating any of the provisions of this Act shall be deemed guilty of a felony and upon conviction thereof shall be punished by confinement in the penitentiary for any period of time not less than one year or more than five years."
The two witnesses above mentioned testified that they bought whisky from appellant which he had in an automobile; one of them bought a gallon, and the other bought a gallon. One of them paid for it, and the other did not, but they took their whisky and went away. From any view point of this law under these facts, these two witnesses were clearly violators of the Dean law and could have been punished. The court, therefore, should have charged that these two witnesses were accomplices and need the necessary corroboration provided by the statute governing accomplice testimony. Appellant brought himself properly within the rule by excepting to the court's charge and requesting a special charge. Franklin v. State, 88 Tex.Crim. Rep., this day decided in opinion by Judge MORROW. The court refused to charge on exception being made, and refused the special requested instruction. This is error, and for which the judgment will be reversed and the cause remanded.
Reversed and remanded. *Page 491
ON REHEARING. February 16, 1921.