Durham v. State
| Decision Date | 30 May 1928 |
| Docket Number | (No. 11540.) |
| Citation | 7 S.W.2d 92 |
| Parties | DURHAM v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Jones County; M. S. Long, Judge.
W. H. Durham was convicted for the possession of intoxicating liquor for the purpose of sale, and he appeals. Reversed and remanded.
Murchison & Davis, of Haskell, and Kirby, King & Overshiner, of Abilene, for appellant.
Clem Calhoun, Dist. Atty., of Abilene, and A. A. Dawson, State's Atty., of Austin, for the State.
The offense is the possession of intoxicating liquor for the purpose of sale; punishment fixed at confinement in the penitentiary for a period of three years.
In substance, the evidence is like that given upon the former trial, a synopsis of which is contained in the report of the opinion of this court in 106 Tex. Cr. R. 85, 290 S. W. 1092. An officer observed whisky in an automobile; a part of which was on the seat, and part of which was between the seat. The appellant was in the act of stepping into the car. Replying to an inquiry by the officer, the appellant stated that he resided in Stonewall county; that he was trading in Hamlin because things were cheaper. The officer said: "It looks like you have got a good supply in the car now." The appellant caught him by the sleeve and said: "Step over here; I want to talk to you." The officer then arrested him and found a number of jars of whisky in the car.
The state introduced the witness Chester Smith, who related that he and the appellant had brought from Aspermont to Hamlin 17 quarts of whisky; that they had agreed to sell the whisky and divide the profits; that none had been sold. Smith testified that he was under indictment for the same offense as that of the appellant, the indictment growing out of the same transaction as that upon which the prosecution against the appellant was based.
Exception was reserved to the charge of the court because of the failure to apply the law of accomplice testimony to the witness Smith. A special charge presenting that issue was presented and refused. In the opinion on the former appeal, Smith was declared to be an accomplice. The reason for not charging that Smith was an accomplice is not stated by the learned trial judge. Under article 670, P. C. 1925, the fact that one is a cotransporter does not render him an accomplice witness. The state, by indicting Smith, made him an accomplice witness. In article 82, P. C. 1925, it is said, in substance, that when co-principals are indicted for the same offense, either in the same or separate indictments, they cannot be introduced as witnesses for one another, and in article 711, C. C. P. 1925, it is declared that persons charged as principals, whether in the same or different indictments, cannot be introduced as witnesses for one another. The uniform interpretation of these two statutes has been to permit the state to...
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