Appellant was convicted of being in the possession of intoxicating liquor, not for medicinal, sacramental, scientific or mechanical purposes.
Only one witness testified upon the trial, and his evidence is here copied in full: "My name is Beverly Jones. I live down near Kemp, on the farm. I am twenty years of age. I remember having some transaction with Clyde Chandler and John Chandler along about the 15th day of September, or somewhere about that time. I bought the whisky from Clyde in Kemp and paid him the money and went out and *Page 306 got the whisky. I bought a gallon and paid him $7.50. He did not deliver the whisky. I went out to John Chandler's; I went out and told him, Mr. Chandler, that he said give me the whisky. Mr. Chandler said all right, and went and got the whisky and brought it to me. He gave me a gallon. He got it back in the barn somewhere. I drank some of it, and it had a `kick.' If I had drunk enough it would have made me drunk."
Appellant raises the question of former conviction, and urges that because he was convicted for the sale of this identical liquor to Beverly Jones, he cannot also be convicted for having possession of the same liquor. This contention has been decided adversely to appellant in cause No. 6265, John Chandler v. State, in an opinion delivered May 11, 1921. The exact question was there presented, and Presiding Judge MORROW uses the following terse statement: "The offenses are not the same, nor do they consist in the same act."
The court was requested to charge the jury to return a verdict of "not guilty" because of insufficient evidence. Jones purchased the whisky from Clyde Chandler, but took delivery of it from appellant. The purchaser became an accomplice as held in Franklin v. State, 88 Tex.Crim. Rep., 227 S.W. Rep., 486, and Robert v. State, 88 Tex.Crim. Rep., 228 S.W. Rep., 230. When the taint of accomplice attaches, it remains during the dealing with the property, the purchase of which produced the taint. It must indeed have been an unsatisfactory sale to Jones until it was consummated by the delivery of the whisky by appellant; and although appellant was charged in this case with "possession," and not the "sale," Jones was none the less an accomplice. No. 6263, John Chandler v. State, Decided May 11, 1921, in an opinion by Judge LATTIMORE, expressly settles the question.
There being no testimony other than Jones, an accomplice, the refusal of the court to give the requested peremptory charge was error.
The judgment of the trial court is reversed and the cause remanded.
Reversed and remanded.