Appellant was convicted in the District Court of Kaufman County of selling liquor in violation of the Dean law, and his punishment fixed at one year in the penitentiary.
In January, 1921, Jep Newton sold to S.T. Scott in the latter's store in Forney, Texas, a jar of whisky. Scott was in the furniture business. He had a clerk by the name of Clarkson who was in the store at the time of the transaction. Scott and Clarkson were the State witnesses. The court told the jury that Scott was an accomplice, and appellant endeavored to show by the proof, and to have the jury instructed that Clarkson was also such accomplice. Scott testified that he bought and paid for the said whisky in question, and that Clarkson had no interest in same, but that each of them sometimes bought liquor, and that when either of them did so, the liquor was kept in the store and each had free access to it and helped himself. Apparently in an effort to inferentially show Clarkson to be an accomplice in the instant transaction, many questions were asked both men relative to past occurrences of a somewhat similar nature, the idea seeming to be that if a custom could be shown of each permitting the other the freedom of his liquor, there would be established such relation toward the instant transaction as would make Clarkson an accomplice. The bills of exception are quite lengthy, each setting out several questions, it being presumed by us that the exception mentioned therein relates to the last of said questions so set out.
By bill No. 1 complaint is made that the court refused to allow answer to the question to Scott: "What were your and Clarkson's dealings with reference to whisky when you bought it? Where did you put it?" The court's qualification shows that Scott said: "Any whisky that Clarkson and I got was put there in the back end of the store. There was no understanding between us that each would drink the other's whisky when we put it there." *Page 263
Bill No. 2 sets out several questions, and then relates that appellant asked Scott, "Isn't it a fact that you and Mr. Clarkson on this occasion and many other occasions before this, and from various parties, had bought whisky and took it there to the store for each of you to drink?" to which the court sustained objection except to the instant transaction.
Bill No. 3 shows that Scott was asked when he bought whisky if he put it in the back end of the store, to which he answered yes. He was asked if Clarkson put the whisky that he bought in the back end of the store, to which objection was made, and he was asked: "Any whisky you and Clarkson got, where did you put it, and answered that they put it in the store. He was asked if they put any in the back end of the store and he said yes. The following question was then asked, to which objection was sustained: "Isn't it a fact that on this occasion and many other occasions before this, and from various parties, you bought whisky and took it in the store there for each of you to drink?" The court sustained the objection except as to the instant transaction.
Bill No. 4 shows that the following took place:
"Q. Didn't you and Mr. Clarkson have an understanding and each know that if the other bought whisky and put it back there, you could each go and drink it, and did do it?
A. I didn't object to him drinking it.
Then he testified: No, sir, he did not object to me drinking his; I knew what he was doing — that he was drinking my whisky, and was asked:
Q. Didn't you buy this whisky knowing and understanding that if Mr. Clarkson wanted the whisky, he would go and drink it?
A. Yes, I knew if he wanted it he would go and get it."
The following question was then asked:
"Hadn't you and Mr. Clarkson, over a period of some months, been purchasing liquor, taking it into the store and there consuming it together, and drinking the whisky, and wasn't that your manner of handling the whisky on this occasion and all other occasions?
Mr. Young: Objected.
The Court: Sustained.
Q. Isn't it a fact that it was your Mr. Clarkson's custom and arrangement, whether or not you had an understanding, wasn't it your custom and arrangement that you would each buy whiskey and put it in there in the store and each drink it when you wanted to?"
Bill No. 5 shows that the witness Clarkson was asked: "Isn't it true you knew that when Mr. Scott bought this whisky, he was buying it for both of you to drink if you wanted it?" This bill of exceptions is qualified by the statement that the witness stated: "At the time Mr. Scott bought the whisky I thought he would put it back there in the back of the store so he and I both could drink it *Page 264 when we got ready — I didn't think he would leave it up there in front. I knew I could drink the whisky when I happened to want any of it."
Bill No. 6 shows the following:
"Wasn't it the arrangement and custom that you and Mr. Scott had on this purchase, and on purchases before that, and since, that when you bought whisky you put it back in the store and you all drank it, and when he bought whisky, he put it back in the store and you all drank it?"
Bill No. 7 shows that the witness answered the question, and it is not shown that the answer was stricken out.
Bill No. 8 shows that the following took place while the witness Clarkson was on the stand. On cross-examination the witness stated:
"Q. Where were you when Scott bought this whiskey?
A. I was in the store, back in the back of the store some place.
Q. What were you doing back there? Were you watching to see that nobody came in to catch them?
A. No, sir, I wasn't."
Appellant then asked him: "Mr. Clarkson, weren't you watching, as you had been doing, so if anybody came in you could tell them?" to which objection was sustained except so far as relates to the instant transaction.
We have stated the matter of each bill of exceptions. It appears that what was sought was some evidence of a custom or habit or understanding between Scott and Clarkson by which the question of an accomplice could be raised as to Clarkson. Both Scott and Clarkson testified fully that each occasionally bought whisky and that when it was purchased it was kept in the store and was free to the other. That there was no understanding that each would drink the other's whisky, but if one wanted it and the other had it, he would go and get it. Scott said Clarkson did not know he was going to get the liquor in the instant transaction, but that he knew when he bought same if Clarkson wanted it he would come and get it. There was a direct denial by both men of any contribution by one to the other, or any interest by one in the liquor bought by the other. There is nothing in any of the answers to the matters contained in the bills of exception which seems to us to raise the question of accomplice. Each man bought and paid for his own liquor, which fact is not called in question by any of said bills. Each man placed his own liquor in the store with full knowledge of the fact that the other could and would use same at his pleasure, but a complete admission of this fact does not bring Clarkson within the rule of accomplice testimony, when Scott bought, or vice versa. That both agreed that when either bought it should be as secretly as possible, seems not to bring Clarkson in any definition of accomplices. That it had been and was a custom and agreement on the part of both men that *Page 265 when one or the other bought liquor he should put it in the back of the store where both might drink it when they saw fit, would bring neither in the rule of accomplice witnesses. It is not a violation of law for a man to give another liquor, nor to drink that which another man has purchased. To make Clarkson an accomplice in this case he must have a criminal connection with the act of appellant in selling the liquor in question, and we think nothing in any of said bills would show such connection sufficiently to call for a charge on accomplice testimony if the matters rejected had been admitted. Scott was not being prosecuted for purchasing liquor, and no question of appellant being an accomplice of the purchaser was involved.
The judgment will be affirmed.
Affirmed.
ON REHEARING. June 29, 1923.