Franklin v. State

• Decision Date: 12 January 1921
• Docket Number: (No. 6059.)
• Citation: 227 S.W. 486
• Parties: FRANKLIN v. STATE.
• Court: Texas Court of Criminal Appeals

227 S.W. 486

FRANKLIN v. STATE.

(No. 6059.)

Court of Criminal Appeals of Texas.

January 12, 1921.

Appeal from District Court, Kaufman County; Joel R. Bond, Judge.

Eugene Franklin was found guilty of selling intoxicating liquors in violation of law, and he appeals. Reversed and remanded.

Wynne & Wynne, of Kaufman, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

MORROW, J.

The judgment appealed from condemns the appellant to confinement in the penitentiary for selling intoxicating liquors in violation of the act of the Legislature known as the Dean Law (chapter 78, Act Thirty-Sixth Legislature, First and Second Called Session).

From the testimony of the only witness used in the case, it appears that he bought from appellant a quart of whisky for beverage purposes under circumstances making it evident that the purchaser knew the transaction was unlawful.

The proposition is advanced that to support the conviction corroboration of the witness was essential.

Referring to article 602, Penal Code, the state combats the correctness of this contention. In that statute it is said:

"When the sale of intoxicating liquor is prohibited in any county, justice precinct, [or] school district, * * * the fact that a person purchases intoxicating liquor from one who sells it in violation of the provisions of this chapter shall not constitute such person an accomplice."

This section of the statute is found in the chapter governing the enforcement of the local option prohibition law, which was passed to give effect to the local option clause of the Constitution. Upon the amendment of the Constitution eliminating that clause, the chapter of the Penal Code giving it effect was eliminated subject to the reservation permitting the prosecution of pending cases.

The Dean Law was enacted with the purpose of enforcing the amended section of the Constitution. See article 16, § 20. The Legislature failed to embrace in the so-called "Dean Law" a provision exempting the purchaser of intoxicating liquors, unlawfully sold, from the operation of the general rule defining accomplices and controlling their testimony. Under this general rule, as it pertains in this state to witnesses, the term "accomplice" means a person who, either as principal, accomplice, or accessory, is connected with the crime by unlawful act or omission on his part, transpiring either before, at the time of, or after the commission of the offense. Phillips v. State, 17 Tex. App. 169, and other cases collated in Vernon's Tex. Crim. Statutes, vol. 2, p. 732.

In chapters 1, 2, and 3, title 3, of the Penal Code, principals, accomplices, and accessories are defined; and one is a principal who, "when the offense is actually committed by another, is present and, knowing the unlawful intent, aids by acts, or encourages by words, the person actually engaged in the commission of the unlawful act"; and it is said "that any person who advises or agrees to the commission of an offense, and who is present when the same is committed, is a principal thereto, whether he aids or not the illegal act." An accomplice is one who, "before the act is committed, agrees with the principal offender to aid, or promises any reward, favor, or inducement to procure the commission of the offense." That one who buys intoxicating liquors, knowing that they are sold in violation of the law, is particeps criminis, within the meaning of the statutes mentioned, as construed by the decisions of this court, seems obvious.

The act of the purchaser in buying the liquor necessarily aids the...