Cortinas v. State

245 S.W. 911, 93 Tex. Crim. 52, 1922 Tex. Crim. App. LEXIS 635

• Court: Court of Criminal Appeals of Texas
• Decided: December 6, 1922
• Docket: No. 7242.
• Status: Published

Opinion

LATTIMORE, Judge.

Appellant was convicted in the District Court of San Patricio County of the offense of selling intoxicating liquor, and his punishment fixed at confinement in the penitentiary for a period of one year.

The indictment charges that appellant sold liquor on or about November 1, 1921. The proof adduced by the State consists in the testimony of only one witness, who swore that about November 1, 1921, he bought from the appellant a bottle of tequila, paying therefor the sum of $5. He testified that tequila was an intoxicating liquor. In his motion for new trial appellant contends that the evidence is insufficient to support the verdict in that but one witness having testified and it being undisputed that he was the purchaser of the intoxicating liquor, under the law in force at the time of the commission of the offense such witness was an accomplice. This court has held that where an indictment charges that the offense was committed prior to the amendment of the Dean Law, which became effective November 15, 1921, the law applicable upon the trial was that which prevailed prior to the taking effect of said amendment to the Dean Act. Plachy v. State, 91 Texas Crim. Rep., 405, 239 S. W. Rep., 979. Under the original Dean Act the purchaser of intoxicating liquor was an accomplice, and if the testimony relied upon to secure the conviction was only that of a purchaser, or any number of purchasers, the measure of proof required by the statute was not met. Ennis v. State, No. 7179, Opinion November 29, 1922. It follows that the only State witness being an accomplice, the contention of appellant in this regard must be upheld.

The judgment is reversed and the cause remanded.

Reversed and remanded.