dissenting.
The indictment alleged that “Johnny Hammonds [appellant] and Elizabeth Ann Johnson, acting together * * *, did sell to Dan Evans, a narcotic drug, to-wit, heroin * * * .”
Evans, the alleged purchaser, was a member of the police department of the city of Dallas and “was working with the narcotics section, making buys from dealers in narcotics undercover, without revealing [his] identity as a peace officer.”
About 6:30 o’clock the evening of January 25, 1957, Evans, in accordance with a prior agreement or understanding, met Detective Stringfellow, of the Dallas police department, in the 1700 block of Kelly Street. Evans was driving a state-owned 1951 Ford two-door sedan. When they met at the appointed place a conversation ensued between them at the conclusion of which Stringfellow gave $26, in money belonging to the city of Dallas, to Evans with which to buy marihuana or any other narcotic.
Evans then drove to the 1700 block of the Good-Lattimer Expressway, in the vicinity of which a tavern was situated. He “just hung around for awhile there in the area,” where he was joined by Edward Jordan, who was known as “Little Fat.” After-wards, Evans and he drove to the corner of Thomas Avenue and Ellis Street. When they arrived there they “were flagged down by three individuals,” two males and a female. The female was the co-indictee here, Elizabeth Ann Johnson. One of the males was known as “George;” the name of the other man was not known. Evans, who was driving, and the other four, who were in the back of the car, then went to the 1600 block of Pine Street in the south part of Dallas and on to the 2800 block of Colonial Street, where they parked near the apartment house in which the appellant lived. The woman then went to appellant’s apartment and returned, alone, to Evan’s car in about three minutes.
*504Shortly thereafter, appellant backed his car from the driveway of his place of residence and pulled alongside the car in which Evans and the others were seated. The woman got out of Evans’s car and into appellant’s car, at which time, Evans said, they engaged in some character of conversation. The woman then returned to the Evans car, whereupon Evans gave her $21. She then went back to appellant’s car, after which she returned with three capsules of heroin and handed them to Evans.
The foregoing are the material facts in Evans’s testimony.
It is significant to note that nowhere therein did he say he purchased the narcotics from the woman or that he asked or sought to purchase any narcotics from her. There is no explanation as to why or for what purpose Evans gave her the $21.
On the other hand, there is no testimony on the part of Evans that Elizabeth Ann Johnson was not purchasing the narcotics for him at his request and with the money furnished by him.
The coindictee, Elizabeth Ann Johnson, was an accomplice witness, as a matter of law. Herrera v. State, 115 Texas Cr. Rep. 526, 27 S.W. 2d 211; Otto v. State, 117 Texas Cr. Rep. 257, 36 S.W. 2d 177; West v. State, 117 Texas Cr. Rep. 340, 37 S.W. 2d 160.
The witness testified that on the night in question she was at home when Dan Evans and others came by her house and that she got in the car with them and drove to the home of appellant. I quote from her testimony as follows:
[“Q. All right, and when you got there what did you do in connection with Johnny Hammonds?] A. Well, I got money and then I went and bought dope from Johnny.
[“Q. All right now, who did you get the money from?] A. The four people in the car.
[“Q. All right. And was Dan Evans one of those people?] A. He was.
[“Q. All right, now you got the money and do you remember how much money it was?] A. $35.00.
[“Q. You think it was $35.00. All right, and you then went *505and took the money and bought what?] A. Dope, narcotics.
[“Q. And who did you buy it from?] A. Johnny Hammonds.
[“Q. All right, and I’ll ask you if you then, you yourself gave the money to Johnny Hammonds?] A. That’s right.
[“Q. All right, and I’ll ask you what you got from Johnny Hammonds?] A. Narcotics.”
The witness further testified:
[“Q. All right, I’ll ask you what you did with the $21 that you got from Dan Evans?] A. I gave it to Johnny.
[“Q. You gave it to Johnny Hammonds. Is that this defendant over here?] A. That’s right.
[“Q. All right, and that $21 was in payment for what; what what did you give it to Johnny Hammonds for?] A. I got narcotics from him.”
Upon recross examination the witness testified as follows:
“* * * * I think Johnny thought he was selling it [the narcotics] to me.”
It is upon this testimony that the state relied to convict appellant of selling or of being a party to the sale of narcotics to Evans, the sufficiency of which testimony is challenged.
In his charge to the jury the trial court made appellant’s guilt to depend upon an application of the law of principals — that is, that Elizabeth Ann Johnson sold the narcotics to Evans and that appellant, knowing her unlawful intent in that sale, aided her by acts or encouraged her by words in that unlawful act. In connection with that charge, the jury were also told that if they entertained a reasonable doubt as to whether appellant knew of the unlawful intent of Elizabeth Ann Johnson in making the sale of the narcotics, if she did, that appellant would not be guilty.
To meet the demands of that charge the state was required to prove, first, that Elizabeth Ann Johnson sold narcotics to *506Evans, and, second, that if she did make the sale appellant had knowledge of that fact and aided her in making such sale.
There is not a line of testimony that the woman sold the narcotics to Evans. At no time did Evans claim that he was buying the narcotics from her or that he gave the $21 to her as the purchase price, from her, of the narcotics.
It must be remembered that to constitute a sale, in criminal law, there must exist the relationship of purchaser and seller and there must be an agreed transfer of property for a consideration moving from the purchaser to the seller. Branch’s P.C., Sec. 1318.
It is apparent, therefore, that Evans’s testimony does not show a purchase by him of any narcotics from Elizabeth Ann Johnson. To the contrary, his testimony is susceptible of but one construction — which is that Evans gave the woman the money with which she was to make the purchase of narcotics from the appellant.
Obviously, Elizabeth Ann Johnson could not be both purchaser and seller of the narcotics. Her testimony is that she purchased the narcotics from appellant with the money Evans and others had given her and that appellant thought he was selling the narcotics to her. At no time does she suggest that there was any kind of agreement or understanding, or otherwise, that she would sell narcotics to Evans as a joint enterprise between her and the appellant.
The evidence not only fails to show that the co-indictee, Elizabeth Ann Johnson, sold narcotics to Evans but it conclusively shows that she purchased the narcotics from appellant with the money Evans had given her. Inasmuch as she did not sell narcotics to Evans, appellant could not have aided or encouraged her as a principal in the doing of that which she did not do.
The state failed, therefore, to prove the first element of the offense — that is, that Elizabeth Ann Johnson sold the narcotics to Evans.
The second element of the offense — that is, appellant’s knowledge of the fact that Elizabeth Ann Johnson made a sale — is not only shown but is wholly disproved by her testimony wherein she says that she purchased the narcotics from appellant and that appellant thought he was making the sale to her.
*507Having predicated its case upon the allegation of the indictment that Elizabeth Ann Johnson and appellant sold the narcotics as a joint undertaking, the state is bound to sustain that that allegation by the evidence. This it failed to do.
A conviction for selling narcotics may not be had upon the uncorroborated testimony of an accomplice.
There is an absence of any testimony corroborating the accomplice, here, as to the guilt of this appellant.
The state had proof from Elizabeth Ann Johnson that she purchased the narcotics from the appellant, for which sale the state could have prosecuted the appellant. This the state refused to do.
I respectfully dissent.
ON MOTION FOR REHEARING
BELCHER, Judge.Appellant strenuously insists that the evidence is insufficient to show that he and Elizabeth Ann Johnson, acting together, sold heroin to Dan Evans, as alleged.
It appears from the record that the appellant had heroin in his possession at the time and place in question. The evidence shows that a sale of heroin was made. Both the appellant and Elizabeth Ann Johnson were present at the time of the delivery of the heroin to Dan Evans. She gave the appellant $21 which she had received from Evans. Then, after appellant had observed George and the occupants of the Evans car, Elizabeth Ann Johnson made the delivery of heroin to Evans.
The facts and circumstances surrounding the delivery of the heroin are sufficient to warrant the jury’s finding that the sale was made as alleged.
Appellant’s motion for rehearing is overruled.
Opinion approved by the Court.