On Motion for Rehearing.
There are but two questions raised by the motion for rehearing which are necessary to discuss:
1. The first is the court’s refusal to submit to the jury whether the witness Whit-ton was an accomplice. Appellant raised and saved this point by requesting a charge on the subject, and by taking a bill of exceptions to the refusal of the court to give such charge, and then in the motion for new trial.
Upon a thorough review of the evidence, we have reached the conclusion that it does raise the question of whether or not Whitton was an accomplice, and that we were in error in holding it did not in the original opinion, and we now hold the court should have submitted that question to the jury. The effect of his testimony tends to show that he knew appellant kept, or got, whisky for sale, and his testimony tends to show that she made sales thereof, and was engaged in that business. In the indictment he is alleged to be one of the persons who-made two separate and distinct purchases of intoxicating liquors from her while she was so engaged in said business. He testified he bought whisky from her three or four times.
The mere fact that he purchased whisky from her would not make him an accomplice under the statute and decisions of this court (Creech v. State, 158 S. W. 282, 283, and cases there cited) ;■ but his testimony went further to the effect that he joined her in an order for whisky in his own name and received and receipted therefor, and delivered it, or had it delivered to her; also that she ordered other whisky in his name without his knowledge, but that, when it reached Nacogdoches, being in his name, the carrier refused to deliver it to any one except to him, and thereupon he at last, at hers and the instance of others for her, receipted for and received said liquor, and turned it over to her' or had it turned over to her. It appears that this is some of the liquor, or at least was received about the time that others testify they bought whisky from her. These acts on his part would tend to show that he was an accomplice.
The first paragraph of appellant’s special refused charge on this issue is: “Xou are'instructed, as a part of the law in this case with reference to the alleged sale to the state witness I. A. Whitton, that, if said Whitton ordered or procured whisky to be ordered by or for the defendant for the purpose and assisted in the sale, if any were made to him or to other persons, and participated in the proceeds of said sale, either by receiving whisky or money, then he would be an accomplice, and you will not convict the defendant upon said testimony unless you further believe that there is other testimony in the case corroborative of said Whitton’s testimony tending to connect the defendant with the transaction alleged to have been had with Whitton, and the corroboration is not sufficient if it merely shows the commission of the offense charged.” This paragraph suggests, at least, that a correct .applicable statement of the law be given. In further applying the law to the facts, the latter paragraph of appellant’s said charge, as it is shown in this record, should not be given.
Instead, an appropriate application to the facts should be made as the jury might find he was corroborated as to one and not more than one sale to him. If to more than one, then, without reference to an alleged sale to any other person on this feature of the law, they could convict. If to one only, then they could, with that one and one or more other alleged sales to oth*189ers, if proven as to this feature of the law, convict. If neither sale to him was corroborated, then they could convict as to this feature if the state showed two alleged sales to others, without reference to either of the alleged sales to Whitton. We merely call attention to these matters so that in another trial the learned trial judge can charge to cover these various features.
2. When the court does not define what is meant by “engage in or pursue the occupation or business of selling intoxicating liquors” as used in article 589, P. C., ■substantially as was. done by the charges in Dickson v. State, 146 S. W. 918, or Creech v. State, 158 S. W. 282, and many other cases decided by this court, and as discussed and illustrated in Fitch v. State, 58 Tex. Cr. R. 367, 127 S. W. 1040, but merely charges in the language of the statute, or substantially so on this feature, such charge would be against the state and in favor of the accused (Clark v. State, 61 Tex. Cr. R. 601, and 604, 136 S. W. 260); for, if not defined as in the Dickson and Creech Cases, supra, then the jury would understand to “engage in or pursue the occupation or business,” etc., meant “calling, trade, vocation, or business which one principally engages in to procure a living, or obtain wealth.” Article 10, P. C.; Standford v. State, 16 Tex. App. 331: Love v. State, 31 Tex. Cr. R. 469, 20 S. W. 978.
So that in all cases tried under said article 589, as this ease was, the lower courts should charge defining said terms of the statute in favor of the state substantially as said charges in the Dickson and Creech Cases, or as discussed and illustrated in the Pitch Case, supra; but, if they do not so charge in favor of the state, the accused has no ground to complain. Christian v. State, 161 S. W. 101.
Por the error of the lower court in' not submitting the question of whether or not Whitton was an accomplice and requiring his corroboration, the judgment heretofore affirming this case is set aside, the rehearing granted, and the cause is now reversed and remanded.