The motion for rehearing is limited to the question whether the inspectors of the Liquor Control Board were accomplice witnesses.
Appellant concedes that the purchaser of intoxicating liquor, which is illegally sold to said purchaser, is not an accomplice witness. See Berlew v. State, 88 Tex.Crim. Rep.; Privitt v. State, 98 S.W.2d 204, 131 Tex.Crim. Rep.. However, he insists that, under the doctrine of entrapment, the inspectors placed themselves in the category of accomplice witnesses, in that they brought about the violation of the law for which he was prosecuted and convicted. In support of this contention appellant cites, among others, the cases of Bush v. State, 68 Tex.Crim. Rep., and Boy v. State,118 Tex. Crim. 532, 39 S.W.2d 55.
It was pointed out in the original opinion herein that the inspectors, in purchasing liquor from the appellant, made no false statements to him. Believing that the appellant was engaged in the unlawful sale of intoxicating liquor, they merely went to his place of business and purchased a quantity of beer from him. It is true that their purpose was to expose the illicit traffic in intoxicating liquor, to the end that the appellant might be properly proceeded against in a criminal prosecution. The criminal design is not shown to have originated with the inspectors, nor does the record show that they implanted "in the mind of an innocent person (the appellant) the disposition to commit the alleged offense." Under the circumstances, the question arises whether the elements of an unwarranted entrapment are present. *Page 344
An examination of the judicial precedents in other jurisdictions discloses the announcement of the rule to be as stated in 86 A. L. R., 264, from which we quote as follows:
"As is stated in the earlier annotations, it appears to be the general rule, in the class of cases where the doing of a particular act is a crime regardless of the consent of anyone, that if the criminal intent originates in the mind of the accused, the fact that an opportunity is furnished, or that the accused is aided in the commission of the crime in order to secure the evidence necessary to prosecute him therefor, constitutes no defense. The purpose of the detective or governmental agent is not to solicit the commission of, nor to create, an offense, but to ascertain if the accused is engaged in an unlawful business, or to entrap the defendant in the act of committing an offense which he has reasonable grounds to believe the accused has commenced or is about to commence."
In support of the annotation numerous authorities are cited, among them being Sorrells v. United States, 287 U.S. 435, 77 L.Ed., 413, 53 S.Ct., 210, from which the following quotation is taken:
"It is well settled that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution. Artifice and stratagem may be employed to catch those engaged in criminal enterprises. Grimm v. United States, 156 U.S. 604, 610, 39 L. ed. 550, 552, 15 S. Ct. 470; Goode v. United States,159 U.S. 663, 669, 40 L. ed. 297, 300, 16 S. Ct. 136; Rosen v. United States, 161 U.S. 29, 42, 40 L. ed. 606, 610, 16 S. Ct. 434, 480, 10 Am. Crim. Rep. 251; Andrews v. United States,162 U.S. 420, 423, 40 L. ed. 1023, 1024, 16 S. Ct. 798; Price v. United States, 165 U.S. 311, 315, 41 L. ed. 727, 729, 17 S. Ct. 366; Bates v. United States, (C. C.) 10 Biss. 70, 10 Fed. 92, 94; note, p. 97; United States v. Reisenweber, (C.C.A. 2d 288 Fed. 520, 526; Aultman v. United States (C.C.A. 5th) 289 Fed. 251. The appropriate object of this permitted activity, frequently essential to the enforcement of the law, is to reveal the criminal design; to expose the illicit traffic, the prohibited publication, the fraudulent use of the mails, the illegal conspiracy, or other offenses, and thus to disclose the would-be violators of the law. A different question is presented when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense *Page 345 and induce its commission in order that they may prosecute."
See also authorities cited in 86 A. L. R., 264.
The announcement of the rule by this court in Bush v. State, supra, is to the same effect as the foregoing, that is to say, that when an officer or other person has reasonable grounds to believe that a violation of the law is in contemplation and takes steps to disclose the would-be violators, he is not to be placed in the category of an accomplice witness when called upon to testify against the alleged offender. The limitation engrafted upon the rule by some of the cases is to the effect that there must not be any undue inducement, "such as urgent appeals to the sympathy of the accused, etc." See 66 A. L. R., 494. However, in view of the record in the instant case, it is unnecessary to decide whether such limitation should receive the approval of this court.
Giving application to the rule announced by the Supreme Court of the United States in the Sorrells case, supra, we are constrained to hold that the record herein fails to reveal an unwarranted entrapment of the appellant by the inspectors of the Liquor Control Board. It follows that it cannot be said that they were connected with the alleged offense, either as principal, accomplice or accessory, by an unlawful act or omission on their part, transpiring either before, at the time of, or after the commission of the offense. See Dooley v. State, 110 Tex.Crim. Rep.; Haynes v. State,113 Tex. Crim. 93; Harper v. State, 92 Tex.Crim. Rep.. This being true, we are constrained to hold that the inspectors mentioned were not accomplice witnesses.
The motion for rehearing is overruled.
Overruled.