The offense is the unlawful manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of two years.
Walker, the State's witness, went to the home of the appellant to serve a summon for road work. He found the appellant engaged in making whisky. The witness remained on the premises for two hours or more and drank some of the whisky. On cross-examination, an effort to elicit an admission from the witness that he had rendered some aid or encouragement to the appellant in making the liquor was without success.
Appellant advances the contention that the witness Walker became an accomplice from the fact that he drank some of the whisky manufactured by the appellant. The specific claim made by the appellant is that in drinking the liquor, the witness violated that phase of the statute which makes it unlawful to"receive" intoxicating liquors. This view cannot be sanctioned. The statute touching the receiving of intoxicating liquors is in these words: "That it shall be unlawful . . . to possess or receive for the purpose of sale any such liquors herein prohibited." The various cases of Chandler v. State, reported in the 89th Tex.Crim. Reports deal with a statute which was absolute in condemning as an offense, the possession, receipt and purchase of such liquors. What was said in those cases touching the testimony of an accomplice must be interpreted in the light of the change of the statute embraced in Chap. 61, Acts of the 37th Leg., 1st Called Session. Even under the statute as it formerly *Page 666 existed, (Chap. 78, Acts of 36th Leg., 2nd Called Session), one was not regarded as an accomplice who merely took a drink of whisky which was handed to him. See Chandler v. State,89 Tex. Crim. 591. In Elliott's case, 92 Tex.Crim. Rep., 244 S.W. Rep., 1007, no analogy is observed with the present case. In that case the witness took part in the sale of which Elliott was charged. Anderson's case, 91 Tex.Crim. Rep., 238 S.W. Rep., 221, seems not in point.
The judgment is affirmed.
Affirmed.
ON REHEARING.