The offense is transporting intoxicating liquor; the punishment confinement in the penitentiary for two years.
Glenn Johnson, Emil Klass and Rubin Stenson testified that they aided appellant in transporting twenty gallons of alcohol from the state of Illinois to Amarillo, Texas. Johnson testified that appellant furnished him and Rubin Stenson four pints of alcohol to be used as samples in an endeavor to secure purchasers. He said that they gave some parties a drink of the alcohol, but did not sell any of it. There is nothing in the record showing that any of the alcohol was sold. Appellant offered no testimony.
The court submitted to the jury the question as to whether the witness Johnson was an accomplice, but refused to submit such matter relative to the witnesses Klass and Stenson. It was appellant's contention that the witnesses were accomplices. We are unable to agree with this contention. If we comprehend the evidence, it goes no further than to show that the alcohol which appellant and the witnesses had transported to Amarillo was merely possessed for the purpose of sale. If the sale had been effected, the matter would be presented in a different light. Under the evidence, appellant and the witnesses were principals in transporting the intoxicating liquor and at least two of the witnesses were probably principals with appellant in possessing said liquor for the purpose of sale. Under the provisions of Art. 670, P. C., the purchaser, transporter, or possessor of intoxicating liquors is not an accomplice witness. In the case of Bailey v. State, 284 S.W. 574, Davis and Darnell agreed to buy a quantity of whiskey from a bootlegger, and that such whiskey should be left at the appellant's home. The bootlegger having left the whiskey at appellant's home, Davis and Darnell got it and, pursuant to an agreement with the appellant, took it to a place for the purpose of selling it. Appellant was to receive all or part of the money from the sale. The parties were arrested before any sale was effected. Upon the trial, the contention was made that Davis and Darnell were accomplice witnesses. We held in that case that the witnesses being mere transporters and possessors for the purpose of sale, were not accomplice witnesses, and referred to Art. 670, supra, and to the decisions to the effect that the purchaser, transporter or possessor of intoxicating liquors is not an accomplice witness. See also Durham v. State, 16 S.W.2d 1092.
Failing to find reversible error, the judgment is affirmed.
Affirmed. *Page 196
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.