Appellant was convicted of violating the local option law, and given eighteen months in the State penitentiary.
The alleged purchaser and main witness for the prosecution was named Koethe. After giving an account of himself in his various preambulations in different locations he finally located himself in Amarillo, in Potter County. He says about the 17th or 18th of March, 1912, he had a business transaction with appellant in reference to intoxicating liquor; and bought liquor from him under the following circumstances: "I gave him two dollars and asked him if he could get me some, and when I gave him the two dollars he went and got it. I gave him the money on the corner of First and Buchanan streets in this city. He was gone long enough to walk to the Union hotel and back possibly five minutes, and returned with the whisky. I saw him go into the Union hotel. He had two pints of whisky in bottles. I drank some of it and know it was whisky. I handed him the money before he got the whisky. He went and got it right then; he dropped the money and picked it up again and went and got the whisky. He did not tell me whose whisky it was. A dollar of the money I paid him was mine and a dollar of it belonged to F.M. Reeves. I think Reeves was across the street from us at the time I gave him the money. He did not hear the conversation between myself and Scott. When he came back with the whisky Reeves was still across the street. He brought the whisky back and I suggested that we take a drink, and we stepped in the alley and opened a bottle and took a drink. I walked across the street and met Reeves and we came to town. I was told that Perry Mitchell occupied that Union hotel and was running it at the time; I don't know who was. I don't know where the defendant stayed at that time." On cross-examination he stated he was a married man with a wife and one child; came from Honey Grove but not direct; stopped at Fort Worth one day and was in Henrietta one day and in Electra a week or perhaps ten days. That he lived in Honey Grove before he lived in Amarillo about a year; that he left there and stayed away a year and went back. He stated he was in several other places, but called that his home all the time. He was a barber there *Page 59 and everywhere else he had been. He worked for an on company a while. He says: "I have an agreement with the sheriff's department with reference to these local option cases. The agreement was that I was to get ten dollars when I turned in a case and was to get the rest when the man was convicted. It was never known how much I would get if a man I turned in was convicted; I don't think they knew themselves. It is still uncertain, — more so than when I made the agreement; I don't know that I will get anything more now. The agreement was made before I turned in this case against the defendant. That agreement was made along about the first part of March. I did not turn in any cases against a bootlegger until that agreement was made. I never counted up how many I have turned in since then; I think seven or eight. I have gotten some money from the sheriff; I have not gotten it all. I don't know whether I got ten dollars for turning this defendant in or not." Among other things, he testified that he was under indictment for carrying a sixshooter, and he expected to make money enough out of turning in local option violations at ten dollars a piece to pay off his fine if he was convicted for carrying the sixshooter. He testified that he went down to the bowery and in a store down there fired off his pistol. That he was not entirely sober at the time; has not paid a fine for that but is under bond for it. He was put through a searching cross-examination, but the substance of his testimony is about as stated. Appellant testified that he was at work as a carpenter during that day. In this he was sustained by other witnesses. He denied having anything to do with the transaction one way or another, and knew nothing of it. Appellant also proved by the agents of the different express companies that he had not shipped whisky in Amarillo except on one occasion some time prior to this when he shipped in four bottles which had been used by himself and friends. It may be stated there was no attempt at connecting that transaction with the one under consideration.
The court charged the jury in the usual manner, that if appellant sold whisky in violation of the local option law they would find him guilty. He also charged the jury in reference to alibi. Appellant objected to the court's charge because it did not submit the issue of agency, and requested two special instructions submitting the law of agency, to the effect that if he bought the whisky for the State's witness and did not sell it to him, the jury would acquit. These charges were refused and appellant again excepted. Why this charge was not given is not explained by the judge anywhere in the record. The evidence for the State through the prosecuting witness was to the effect that he gave defendant a couple of dollars to buy that amount of whisky; that appellant took the money and was gone a few minutes and returned with two pints of whisky, out of which he and witness took a drink. This is the State's case. And it is further shown in this connection that appellant went into the Union hotel occupied by Perry Mitchell. Perry Mitchell has left the country, and the testimony *Page 60 indicates on account of prosecutions. The question of agency is clearly and definitely raised by the testimony and the jury should have been so instructed. See Evans v. State,55 Tex. Crim. 450, an opinion written by Judge Brooks. Mr. Branch in his work on Criminal Law, sec. 569, has collated the authorities, at least quite a number of them, to the effect that if defendant is in no way interested on behalf of the seller, but simply acts as agent of the prosecutor, he is not guilty of making a sale. Key v. State, 37 Tex.Crim. Rep.; Reed v. State, 44 S.W. Rep., 1093; Crawford v. State, 76 S.W. Rep., 576; Blassingame v. State, 47 Tex.Crim. Rep.; Rector v. State, 90 S.W. Rep., 41; Short v. State, 49 Tex.Crim. Rep.; Bowman v. State, 35 S.W. Rep., 382; Brignon v. State,37 Tex. Crim. 71; Kirby v. State, 46 Tex.Crim. Rep.; Way v. State, 36 Tex.Crim. Rep.; Gaston v. State, 102 S.W. Rep., 116; Hood v. State, 35 Tex.Crim. Rep.; Crawford v. State, 44 S.W. Rep., 1088; Phillips v. State, 40 S.W. Rep., 270. If there is evidence that the accused bought liquor from another as agent of purchaser, and that he was not interested in behalf of the seller, it is error to refuse a charge affirmatively presenting this issue. Campbell v. State, 37 Tex. Crim. 572; Treue v. State, 44 S.W. Rep., 829; Strickland v. State, 47 S.W. Rep., 720; Driver v. State, 48 Tex.Crim. Rep.; Golightly v. State, 49 Tex.Crim. Rep.; Evans v. State,55 Tex. Crim. 450; Wright v. State, 35 Tex.Crim. Rep.. Where the only proof was that prosecutor gave defendant money and asked defendant to buy liquor and defendant went off and got it and delivered it to prosecutor, a conviction could not be sustained. Givens v. State, 49 Tex.Crim. Rep.. This would seem to be a sufficient number of cases for the trial court to understand that where the question of agency is suggested by the facts, a charge on the subject should be given.
The writer has had occasion heretofore to criticise the character and manner of inducing men to commit crime as is evidenced by this record. This witness testifies and is not uncontroverted or contradicted, that the sheriff agreed to give him ten dollars for each case he would "turn in" and additional money or compensation if a conviction should occur. The officers are not justified in inducing men to commit crime or in employing others to induce them to commit crime in order that prosecutions may be instituted. It is his duty as an officer where he understands that parties are engaged in crime to use every effort legitimate and permissible by law to detect and ferret out crimes and bring criminals to trial and justice. But this does not justify him in employing parties to go out and induce the citizens to commit crime that prosecutions may be instituted and carried on. We here call the attention of the Legislature to such matters and would suggest that appropriate legislation be enacted to prevent matters of this sort occurring. This matter was thoroughly gone over by Judge Hurt in Dever v. State,37 Tex. Crim. 396. See also the case of Bush v. State, decided at the present term of this court. *Page 61
There are some other matters in the case, but as they will not arise upon another trial, especially in the manner presented here, they are not discussed.
The judgment is reversed and the cause is remanded.
Reversed and remanded.
ON REHEARING. February 26, 1913.