The appeal in this case at a former day of the term was dismissed because the record failed to show the final judgment, in that no sentence appeared to have ever been passed upon the appellant. He files a motion for rehearing, attaching thereto a certified copy of the sentence, and requests that the appeal be reinstated and the case disposed of on its merits.
Appellant was convicted for violating what is conveniently termed the provisions of the "Dean Law," and his punishment assessed at one year in the penitentiary.
Only two witnesses testified in the case, the purchaser of the intoxicating liquor, and one other witness by the name of Griffin, who does not pretend to know where the purchaser procured the whisky, he simply stating that he carried the purchaser and another party out on the road and that they got out of the car and walked off, and he did not know where they went, and when they came back they had the whisky.
Counsel for appellant requested the court to charge the jury that the purchaser was an accomplice, which the court refused to do, this case having been tried prior to the decision of this court in the Franklin and Roberts cases. There is not the semblance of corroboration of the accomplice in this case, and under the authority of the Franklin case, 88 Tex. Crim. 342, 227 S.W. Rep., 486, and the P. Roberts case decided at a more recent date and not yet reported, the purchaser of intoxicating liquor under the Dean law is an accomplice, that law having fixed upon the purchaser himself a penalty. The charge requested should have been given, and under the facts of this case as disclosed by the record the court ought to have instructed the jury to return a verdict of not guilty, because there was no testimony in any way corroborating the accomplice.
The former dismissal of this appeal will be set aside, the case reinstated, and the judgment of the trial court reversed and the cause remanded.
Reversed and remanded. *Page 110