286 S.W. 1092 | Tex. Crim. App. | 1926
Lead Opinion
The offense is the unlawful sale of intoxicating liquor and the punishment is one year in the penitentiary.
There is but one bill of exceptions in the record and this pertains to the court's action in refusing to give a peremptory instruction in favor of the defendant. Appellant contends first that the only witness for the state was an accomplice in that he was an officer of the law and that he purchased the whiskey for the purpose of inducing the defendant to make the sale in order that he might be trapped into a violation of the law, and that he therefore became an accomplice because he aided and advised and encouraged the commission of the offense. Appellant's contention in this respect is without merit. The statute itself expressly provides that a purchaser is not an accomplice and there is nothing in this record taking the case out of the statute.
Appellant also contends that the evidence is insufficient because the indictment alleges that he sold spiritous, vinous and malt liquor, and as the evidence showed that he sold whiskey, this would not meet the allegations in the indictment. This contention cannot be sustained. The authorities are so numerous to the contrary as to make it unnecessary, if not, indeed, useless, to again collate them. In addition to the proof by the wtiness to the effect that he bought whiskey from the appellant, he goes further and testifies that the whiskey that he bought from the appellant was intoxicating liquor.
Finding no error in the record, the judgment is in all things 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.
Addendum
The motion for rehearing presents no fact, authority or argument not considered by the court on the original hearing, upon which, in the light of the record, the proper disposition of the appeal, in our opinion, was made.
The motion is overruled.
Overruled. *87
