The appellant was convicted of the unlawful sale of intoxicating liquor to G.C. Cobb.
At the time of the transaction, it was an offense to buy, as well as as to sell, intoxicating liquor, and the purchaser was in the attitude of an accomplice witness. (See Franklin v. State,88 Tex. Crim. 342.) The law has since been amended so that at this time the purchaser is not an accomplice.
The court instructed the jury that Jordan and Cobb were accomplices, and was requested to instruct the jury to determine whether Oats was an accomplice. The refusal of this request is made the basis of this appeal. Cobb and Jordan arranged to buy whisky from the appellant. Cobb gave the appellant nine dollars for the whisky which he afterwards received. Fifteen or twenty minutes after the money was given to appellant, according to Cobb's testimony, Cobb induced Oats to accompany him to a certain alley. He said: "I asked Mr. Oats to go with me; I told him I was going to get a negro for selling whisky, and told him I wanted him to go along, and we went up that front street there and went around and came up the alley." He waited at a point arranged with the appellant. Cobb further said: "The whisky was delivered to Mr. Oats, it was not delivered to me in person by the defendant, but it was delivered to Mr. Barney Oats in my presence. . . . Mr. Oats handed it over to me. . . . Mr. Oats and I then took a drink of it, and I put the bottle in my pocket." According to Cobb, the purpose of Oats' presence was to aid in buying the whisky.
Oats testified that he went with Cobb to a certain alley and there appellant handed to the witness Oats a package containing a sixteen-ounce bottle of whisky. Cobb at the time was about thirty feet away. In our opinion, Oats' connection with the transaction was such as to require a charge on accomplice testimony permitting the jury to decide whether Oats was an accomplice witness. He was admittedly an actor in the purchase of the whisky. It was through him that the whisky was delivered to Cobb, the alleged purchaser. It was conceded *Page 574 upon the trial that Cobb, who received the whisky from Oats, was an accomplice. Oats received it from the appellant and delivered it to Cobb. It seems that Jordan was an officer and that he had instigated Cobb to induce the appellant to sell him whisky for the purpose of convicting him of the offense. Oats took part in the purchase. The principle of law applicable, we think, is, thus stated:
"Where the complicity of the witness is admitted, but the prosecution claims that he was merely a feigned accomplice acting with a view to the detection of the real criminals, it is for the jury to determine whether the witness was an actual or only a feigned accomplice." See Corpus Juris, Vol. 16, p. 678, sec. 1370; Smith v. State, 89 Tex.Crim. Rep..
In our opinion, the court was not justified in refusing to charge the jury, upon the request of appellant, upon the law of accomplice testimony as relating to the witness Oats. For that reason, the judgment should be reversed and the cause remanded.
The motion for rehearing is therefore granted, the affirmance set aside and the judgment is reversed and the cause remanded.
Reversed and remanded.