Opinion
No. 11709.
Delivered May 30, 1928. Rehearing denied June 28, 1928.
1. — Transporting Intoxicating Liquor — Election by State — Not Necessary — Rule Stated.
Where appellant was tried under an indictment containing two counts, one for transporting and the other for the possession of intoxicating liquor, it was not necessary to require the state to elect upon which count a conviction would be asked.
2. — Same — Continued.
Where the transportation and possession involve the same transaction and testimony pertinent to one, was also material to the other, and the court told the jury in his charge that if they found appellant guilty they must state in their verdict of which count he was so found, the action of the trial court in declining to require the state to elect is upheld. See Huffhines v. State, 94 Tex.Crim. Rep. and other cases cited.
3. — Same — Accomplice — In Liquor Cases — Rule Stated.
By the terms of Art. 670 of our penal code a co-possessor, transporter, or purchaser of intoxicating liquor is specifically exempted from being an accomplice. One who takes money from another and purchases liquor with same for him is not an accomplice.
ON REHEARING.4. — Same — Election as to Transactions — Not Requested — No Error Presented.
Where in his motion for a rehearing appellant complains that the state should have elected between "transactions" shown by the evidence. No request for an election between the two transactions disclosed being made on the trial, the complaint on rehearing is without merit.
Appeal from the District Court of Eastland County. Tried below before the Hon. George L. Davenport, Judge.
Appeal from a conviction for transporting intoxicating liquor, penalty three years in the penitentiary.
The opinion states the case.
J. Lee Cearly of Cisco, for appellant.
A. A. Dawson of Canton, State's Attorney, for the State.
Conviction for transporting intoxicating liquor; punishment, three years in the penitentiary.
Appellant was charged in an indictment containing two counts, one for the transportation of intoxicating liquor, and the other for the possession of same for purposes of sale. The verdict and judgment were specifically for the transportation of such liquor. Appellant moved the court to require the State to elect upon which count in the indictment it would rely for a conviction. The motion was overruled, and this action of the court is here attacked. Appellant cites Smith v. State, 90 Tex. Crim. 273, which is not in point because the facts in that case are totally different from the facts here. In the case before us the transportation and possession involved the same transaction, and testimony pertinent to one was also material to the other. The court told the jury in his charge that if they found appellant guilty, they must state in their verdict of which count he was so found. The action of the court in declining to require the State to elect is upheld in many cases. Huffhines v. State, 94 Tex.Crim. Rep.; Guse v. State, 97 Tex.Crim. Rep.; Wimberly v. State, 97 Tex. Crim. 316; Wimberly v. State, 98 Tex.Crim. Rep.; Rodriguez v. State, 100 Tex.Crim. Rep.; Trammel v. State, 103 Tex.Crim. Rep.. This case is an exact case upon the facts as well as the conclusion of law. Kile v. State, 106 Tex. Crim. 328; Gray v. State, 107 Tex.Crim. Rep..
Appellant also contends that the trial court should have instructed the jury on the law of accomplice testimony. We do not think so. By the terms of Art. 670 of our Penal Code a co-possessor, transporter, or purchaser of intoxicating liquor is specifically exempted from being an accomplice. The testimony in the case at bar shows that the witness asserted by appellant to be an accomplice, took money from appellant and purchased for him whiskey, and then accompanied appellant in the car to the place where the officers arrested them. We think appellant wrong in his contention.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.
In his motion for rehearing appellant insists that the evidence shows two "transactions," the one relating to beer, the other to whiskey, and that the state should have elected between "transactions." It is sufficient answer to this contention to say that no request was made for an election between transactions. The only request upon the subject was as between the counts in the indictment.
As we understand the evidence it does not show the witness to have been an accomplice under Art. 670. P. C.
The motion is overruled.
Overruled.