Appellant was convicted in the Criminal District Court of Bowie County of the offense of unlawfully selling intoxicating liquor, and his punishment fixed at confinement in the penitentiary for a period of two years.
The facts sufficiently appear in this opinion. It is insisted that the trial court erred in his charge upon accomplice testimony as applied to witnesses Cobb and Jordan. The charge complained of as applicable to the facts herein, is not harmful. Hunt Watson v. State, No. 6490, decided by this court January 18, 1922, and not yet reported, The evidence amply showed the guilt of appellant, and the sufficiency of the corroboration of the alleged accomplice.
Unless there be sufficient evidence in this record to cause this court to believe that there was error on the part of the trial court in refusing to submit to the jury the question as to whether State witness Oats was an accomplice, the case must be affirmed. An examination of the statement of facts shows that witness Cobb bought a pint of whisky from appellant, paying him therefor nine dollars. The whisky was to be delivered in a certain alley, later. No one was present when the purchase was made and the money paid to appellant. Afterward Cobb told witness Oats that he was going to get a negro for selling whisky and that he wanted Oats to go along. Oats went. When appellant came up to them he was nearer to Oats, and Cobb told him to give the package to Oats, which appellant did. The whisky was in a bottle in a paper sack. Oats handed it to Cobb, and later the two men took a drink out of it. Oats was a deputy sheriff of Miller County, Arkansas, in which part of the city of Texarkana is located, and testified that what he did in the matter was to aid Cobb in apprehending appellant. There is quite a doubt in our minds as to whether any of the parties were shown to be accomplices in law. They were all officers engaged in an effort to arrest parties illegally selling liquor. While Cobb and Oats took a drink of the liquor, the bottle and its contents were carried to the sheriff's office and there turned over to the sheriff, and used in evidence against appellant. The taking of a drink of such liquor did not make Oats an accomplice. Howard v. State, 90 Tex. Crim. 164, 233 S.W. Rep., 847; Venn v. State, 89 Tex.Crim. Rep., 232 S.W. Rep., 822. Officers engaged only in an effort to ferret out and bring to punishment those engaged in the commission of crime, would not in all cases be accomplices. However, the evidence in the case entirely negatives any participation on the part of Oats in the purchase of the *Page 573 liquor, or of any knowledge that such liquor had been purchased by Cobb, and we think nothing raises the issue of accomplice as to him, and that the trial court did not err in refusing to tell the jury that he was an accomplice, and in not submitting such issue to them. Our conclusion in this regard disposes of each of the other contentions of appellant.
Finding no error in the record, the judgment of the trial court will be affirmed.
Affirmed.
ON REHEARING. November 8, 1922,