In his motion for rehearing, appellant objects to that part of our original opinion herein, where it is stated that no bills of exception were reserved. It is true that while the record contains no specific bills of exception, there were objections made to the court's charge, in writing, which were approved by the trial court as having been filed in due time, and are in the nature of a bill of exceptions; and our statement was not accurate. In said objections, it was urged that the charge was erroneous, in that it did not tell the jury that the witnesses Walker, Lewis, Burton and Wood, were accomplices, and in that it did not submit to the jury the question as to whether they were such. Wood, Burton, and Lewis were officers, and acted with Walker in an effort to stop bootlegging in Waco. Walker was furnished certain marked money, with which he said he bought whisky from appellant, after the sale of such intoxicant had been forbidden by the adoption of an amendment to our constitution. That such purchaser is not an accomplice has been frequently held by this Court. Seals v. State, 35 Tex.Crim. Rep.. Ray v. State, 60 Tex.Crim. Rep.; Moreno v. State, 64 Tex. Crim. 669; Creech v. State, 70 Tex.Crim. Rep..
The charge of the trial court was correct in failing to submit the issue of accomplices, or to instruct the jury that such witnesses were of such character. *Page 247
It must be made to appear in the record upon appeal, either from the statements connected with and a part of the special charge as presented, or elsewhere in the bills of exception taken to their refusal, That such charges were presented to the trial court before the argument was had. In the absence of some such showing, our well known rule which imputes correctness to the action of the trial court until the opposite is made to appear, would compel us to sustain the court's action in refusing even a proper special charge upon the ground that the same was presented too late, if no other reason for such action is shown. James v. State, 74 Tex.Crim. Rep., S.W. Rep., 727; Jones v. State, 74 Tex.Crim. Rep., 167 S.W. Rep., 1110; Crossett v. State, 74 Tex.Crim. Rep., 168 S.W. Rep., 548; Galan v. State,76 Tex. Crim. 619, 177 S.W. Rep., 124; Lopez v. State,73 Tex. Crim. 624; Clay v. State, 75 Tex.Crim. Rep., 170 S.W. Rep., 743; Barrios v. State, 83 Tex.Crim. Rep., 204 S.W. Rep., 326.
In his motion, appellant further urges that the evidence does not support the verdict. The witness Walker testified positively to purchasing a quart bottle of whisky from appellant, and that he gave him in payment therefor a marked ten dollar bill, which he had gotten from the officers. Walker said that he paid this money in sight of the witness Lewis, and that he put the bottle of whisky in his pocket, after imbibing a small portion thereof. The whisky was found on Walker by witness Burton. Lewis said he saw Walker flash a bill as he was paying some money to appellant. Appellant was a service car man, waiting at the M.K. T. depot in Waco, when this transaction took place. Witness Risch came to appellant's car a few minutes after Walker said he bought the whisky and appellant carried Risch to his destination in said city for which service said witness and Walker said he paid appellant. Walker went with them. Risch said that he tendered appellant a twenty dollar bill in payment of his fare, and received from the latter, among other money, the marked ten dollar bill, which he later delivered to an officer who came for it, and gave him another bill in exchange. Much of this testimony was denied, but the credibility of the witnesses, as well as the weight of their testimony, is for the jury. We do not think the verdict against the weight of the testimony, nor without support therein.
The motion for rehearing will be overruled.
Overruled. *Page 248
ON SECOND MOTION FOR REHEARING. October 20, 1920.