Conviction is for the unlawful possession of intoxicating liquors.
Holley testified, in behalf of the State, that after going to the home of John Chandler, and failing to find him, he, in company with Jenkins, went to see John Chandler at another place, learning from him that on his premises, there was a cotton picker named Slim who could furnish the witness with some whisky. The witness, on going to the home of John Chandler, saw Clyde Chandler and Slim and discussed the purchase of a quart of whisky. Clyde and Slim went into the house, leaving the witness outside. Later, they called him in, and upon entering the room, he found some whisky in fruit jars. He left some money and took the whisky.
Jenkins testified that he accompanied Holley to the home of John Chandler and saw Holley talk to him but heard no part of the conversation; that upon their return to John Chandler's home, he saw Slim and Clyde Chandler, Clyde having a bucket in his hand. They went to the well and then to the house. Upon leaving, Holley was in possession of some whisky, of which the witness took a drink. Jenkins admitted that he drank some of the liquor, but claimed that he had no connection with the purchase and no knowledge of Holley's intention to obtain the intoxicant.
Holley's connection with the offense made him an accomplice witness, as a matter of law. Franklin v. State, 88 Tex. Crim. 342, 227 S.W. Rep., 486. His testimony, uncorroborated, would not support the conviction. Code of Crim. Procedure, Art. 801. The *Page 601 facts related by Jenkins tended to connect appellant with the commission of the offense, and unless Jenkins was an accomplice, the evidence is sufficient to support the verdict.
There are facts revealed which would have justified the court in calling upon the jury to determine whether Jenkins was an accomplice witness or not; and on request, he would have been obliged to so charge the jury. Huggins v. State, 85 Tex. Crim. 205, 210 S.W. Rep., 804. Jenkins was not an accomplice, as a matter of law. He disclaimed any participation in the offense or any knowledge of the unlawful intent of Holley or of the appellant. From his testimoney, his sole connection with the transaction consisted in his presence and the fact that he took a drink of the whisky which was in Holley's possession. Upon this testimony the jury was privileged to find that he was not an accomplice witness. The verdict implies that this was done.
The evidence, we think, is sufficient to show that the appellant's possession of the liquor was for the purpose of making an unlawful sale. The definite testimony of Holley, who was an accomplice, being sufficiently corroborated by the testimony of Jenkins, who is not shown to have been an accomplice, renders the evidence sufficient to support the conviction.
The judgment is therefore affirmed.
Affirmed.
ON REHEARING. June 22, 1921.