On a former day of the term the judgment herein was affirmed out of deference to the opinion of my brethren, citing the recent case of Franklin v. State. I did not then believe the judgment ought to be affirmed, nor do I yet believe on the facts appellant ought to be convicted. The State's witness is named Livsey. He testified that he got the whisky from appellant under the following circumstances: "I saw the defendant and asked him if he had any whisky; he said he did. I told him I wanted some; he said all right, and called his son and told him to let me have the bottle of whisky that was in the wagon; the son let me have the bottle of whisky and I paid the defendant two dollars for it." He further testified: "I was employed by the county attorney to hunt for `boot-leggers' and was paid some money once or twice. I got money along as I needed it. You might call me a spotter or detective. I was employed to find out if anybody was selling whisky." The defendant, Toney Albright and Elmer Albright testified positively that no such sale occurred; that this "detective" or "spotter" came to where their father was and asked him for whisky, and was informed that he had no whisky but that his son, Toney Albright, had some. Toney Albright did not want to let Livsey have the whisky, but his father told him to let him have it; he was a good fellow and was all right. All three of these witnesses testified positively that it was a gift and nota sale. The usual rule is that the jury are the exclusive judges of the facts proved and credibility of the witnesses, and under the local option law a purchaser is said not to be an accomplice, and his testimony would afford the basis for a conviction. The Legislature so provided and it is not my business here to question the wisdom of this policy or Act of the Legislature, but I am persuaded that this statute does not cover such a witness as this and was not intended to do so. This statute, as I understand it, does not apply to a case where the "detective" or "spotter" or "spy" himself *Page 120 originates the case and induces men to commit crime. If such are the facts, then he would be a particeps criminis under the rule laid down by this court in the cases of Dever v. State,37 Tex. Crim. 396, 30 S.W. Rep., 1071, and Bush v. State,68 Tex. Crim. 299, 151 S.W. Rep., 554. Those cases draw the distinction between men who are ferreting out crime and officers who are ferreting out crime, and those who institute and bring about an occasion for crime and induce the crime. A purchaser may be a witness who does not need corroboration, where he is a purchaser under ordinary circumstances, but where as a detective or spy or spotter he is employed and receives a salary to go round and institute and organize crimes and cases against people, in my judgment, he does not come within the provision of the legislative enactment. He himself is a criminal in that he brings about a criminal transaction, and sets himself to work to do so in order that he may punish people for the pay that his employer gives him. In that sort of a case he himself is a criminal — a particeps criminis — and needs corroboration. However, my brethren believe the case ought to be affirmed. These are my individual views above expressed. I do not believe this judgment ought to be affirmed on the testimony of this man Livsey, who himself brought about and induced this crime, if it is one. Of course, all the other testimony shows that appellant did not sell any whisky, but it was a present to this "detective" or "spotter."
In my judgment this motion for rehearing ought to be granted and the judgment reversed, but in accordance with the wishes of my brethren and their views of it, it will be overruled.
Overruled.