Phillips v. State

244 S.W. 146, 92 Tex. Crim. 317, 1922 Tex. Crim. App. LEXIS 452

Opinion

HAWKINS, Judge.

— Conviction is for selling intoxicating liquor. Punishment, three years in the penitentiary.

The sale upon which the prosecution is based occurred prior to the amendment of the law by the Thirty-seventh Legislature, when the purchaser was an accomplice. The trial however was had after the amendment became effective, under which the purchaser is no longer an accomplice. The only two witnesses testifying for the State were joint purchasers. Appellant contends that the law as it existed when the offense was committed controls, and that in the absence of corroborative testimony the trial judge should have given the requested instruction to return a verdict of “not guilty.” Plachy v. State, 91 Texas Crim. Rep., 405, 239 S. W. Rep., 979 holds that the amendment by the Thirty-seventh Legislature in an ex post facto law as it applies to offenses committed prior to its enactment, and is direct authority for appellant’s contention. It however had not been decided when the instant case was tried.

The judgment must be reversed and the cause remanded.

Reversed and remanded.