Gates v. State

Offense, the unlawful delivery of intoxicating liquors; penalty, two years in the penitentiary.

For the State it was shown that Roy Hedrick and Oswald Kalmback bought a pint of whiskey from appellant, paying him $2.00, $1.50 of which was paid by Hedrick and the remainder by Kalmback. This whiskey was delivered by appellant in the town of Georgetown. Appellant was indicted in five counts. The first count charges the sale of intoxicating liquors to Roy Hedrick; the second count charges the transportation of intoxicating liquors; the third the delivery of intoxicating liquors to Roy Hedrick; the fourth the sale to Hedrick and Kalmback of intoxicating liquors; and the fifth the delivery to Hedrick and Kalmback of liquors capable of producing intoxication. Appellant was convicted under the fifth count of the indictment.

Both Hedrick and Kalmback testified to the sale and delivery of the liquor. The claim is made that each of these witnesses were accomplices and there being no corroboration, the evidence is insufficient to sustain a conviction. The connection of the two witnesses with the transaction was that of purchasers and under the terms of Art. 670, P. C. (1925), this would not constitute them or either of them an accomplice. The exact question seems to have been decided against appellant in the case of Dennis v. State, 108 Tex.Crim. Rep..

The further contention is presented that the jury having by their verdict acquitted appellant of the unlawful sale of intoxicating liquor to the witnesses named, he was by such verdict acquitted of the charge of the delivery of intoxicating liquors to them. While the verdict of the jury had the effect of an acquittal for the unlawful sale of intoxicating liquor, it would not amount, we think, to an acquittal on the charge of delivery of same, as claimed by appellant. The jury may have under the testimony believed that the *Page 246 elements of a sale had not been satisfactorily proven, while at the same time believing beyond a reasonable doubt that intoxicating liquor had been actually delivered. The two do not necessarily have to coexist. It seems plain from the terms of Art. 666, P. C. (1925), that there could be a delivery of intoxicating liquor without a sale so as to violate the statute.

These two questions are the only ones argued or briefed and not believing that either shows error, the judgment of the trial court is affirmed.

Affirmed.

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.