We discuss the appellant's contention that we erred in upholding the action of the trial court in not submitting the issue of suspended sentence, no further than to say that our former conclusion is upheld by the unbroken decisions of this court.
Appellant again insists that the learned trial court erred in refusing to instruct the jury that State witness Wilson was an accomplice, his contention being based on the proposition that according to the testimony of appellant and his witnesses, Wilson kept certain money turned over to him by appellant to be paid to Mr. Frederick. That this may be clear, — it appears from the facts that Mr. Frederick gave Wilson a check for $75 to be used by the latter in payment for the whisky involved in the alleged transaction. This check was turned over to and endorsed by appellant and the five gallons of whisky were admittedly brought by appellant and put in the barn of Wilson. It is also without dispute that subsequent to this transaction Mr. Frederick claimed the whisky was unfit for use and demanded the return of his money from appellant. Frederick and Wilson both testified that when the money was returned by appellant to Wilson for Frederick that $7.50 was kept out for a half gallon jar of the liquor that was broken by Mr. Frederick. Frederick said that when it was agreed that the money was to be paid back to him by appellant, except for that which was broken, that appellant and Wilson went into the office of the latter from which Wilson presented emerged with $67.50 in money which was by him turned over to Frederick. Appellant and his witnesses testified that he turned over $75 to Wilson. As we understand appellant's contention under discussion it is that Wilson kept $7.50 of the money thus returned to him by appellant and by that *Page 660 act became an accomplice. We would not be inclined to think such facts to make of Wilson an accomplice in any event. The sale of the liquor, if any, had been completed and the liquor turned over to the purchaser. The violation of the law charged against appellant was completed. If in a subsequent attempt to readjust the transaction because of the inferior quality of the whisky Wilson appropriated part of the money given him by appellant to be returned to Mr. Frederick, this would not seem to us capable of any interpretation that would make Wilson an accomplice to the sale of the liquor. His act in this connection if as contended by appellant, was not part or parcel of the transaction resulting in the completed sale of the liquor but arose from his lapse in connection with the readjustment. Even if guilty of embezzlement or any other crime in connection with an appropriation of the alleged $7.50, his status in this regard could not be looked to as determining his attitude as a witness in the other transaction.
Nor are we able to agree with appellant that the learned trial judge erred in admitting evidence of a prior transaction between appellant, Wilson and Frederick, similar to the one detailed here. Appellant having asserted his entire innocence in the instant transaction, and that he acted solely as accommodation agent for the purchaser Wilson, or Wilson and Frederick, it was competent for the State to rebut this claim of innocent intent in the transaction under investigation, by proof of another transaction involving a sale by appellant.
The motion for rehearing will be overruled.
Overruled.