233 S.W. 847 | Tex. Crim. App. | 1921
Lead Opinion
Appellant was convicted in the District Court of Kaufman County of the offense of manufacturing intoxicating liquor, not for medicinal, scientific, mechanical or sacramental purposes, and his punishment fixed at confinement in the penitentiary for a period of five years.
The record is before us without any exception taken to the court's charge, and without any request for special instructions, and without a bill of exceptions to the introduction or rejection of any evidence. In his motion for new trial appellant complains that he was convicted on the uncorroborated testimony of accomplices; also that the trial court failed to tell the jury that certain witnesses were accomplices, and did not submit to the jury the issue as to whether such witnesses were accomplices, and did not submit the law of accomplice testimony; that appellant had no opportunity to procure counsel; and that the evidence does not support the conviction.
We do not think this record discloses a case resting on the uncorroborated testimony of an accomplice or accomplices. The main State witness was a young girl who lived in the house with appellant's mother, in which house the alleged manufacturing of liquor took place. This girl testified fully to appellant's manufacture of such liquor on more than one occasion. The only ground upon which any claim is put forward by appellant that she was an accomplice, rests on her statement that she tasted said liquor and on some occasions drank a little of same, and that she was present at the time the liquor was made. The mere presence of a witness at the time of the commission of an offense, does not call for an instruction on the law of accomplice testimony, or constitute such witness an accomplice. Smith v. State, 28 Texas Crim. App., 309. In our opinion the fact that said witness stated that she had tasted the liquor in question, and drank a portion thereof, would not make her an accomplice. The State introduced *166 evidence of officers to the finding in the house of appellant's mother, of the apparatus identified and described by the girl as being that with which the liquor was manufactured. As far as we may determine from the evidence and the testimony of the witnesses, said apparatus appeared to be amply sufficient for the purpose for which it was apparently used. Said apparatus was introduced in evidence before the jury. In the record appears the testimony of one Jerry Williams that on different occasions about the time appellant is charged to have manufactured said liquor, said witness had bought certain quantities of same from appellant. The fact that one purchases intoxicating liquor from one accused of the manufacture thereof, might be admissible as corroborative of the fact of such manufacture, and also as illustrative of the fact that such manufacture was not for one of the excepted purposes. The fact of purchase, however, would be but a circumstance in a case wherein the charge was manufacturing.
It appears to be the law of this State since 1913, that unless the charge of the court be fundamentally erroneous, either in its affirmative statement of the law, or by reason of its failure to state the law, an error therein will not be held reversible unless there be exception taken to such charge at the time it is given, or a charge correctly presenting the matter be refused. Art. 735, Vernon's C.C.P.; Childs v. State,
We are not at all inclined to agree with the contention of appellant that this conviction is not supported by the testimony, or that it rests upon the uncorroborated testimony of accomplices. Appellant was represented on the trial by counsel who seem to have developed his theory of the case fully.
We find no error appearing in the record and an affirmance is ordered.
Affirmed.
Addendum
It is urged that the case should have been reversed for failure to submit the law of accomplice testimony. No exception being taken to such failure, and no request appearing for the submission of such issue, no reversible error would appear under the facts. In Huggins v. State, 85 Tex.Crim. Rep., 210 S.W. Rep., 804, we said: *167
"No request for the submission of the questions whether the rule of accomplice testimony governed the state's witnesses having been made, their status would not be available to appellant upon appeal, unless they came within the accomplice rule as a matter of law and there was not sufficient corroboration. We do not think they were accomplices as a matter of law. Sanchez v. State, 48 Tex.Crim. Rep.,
The motion for rehearing is overruled.
Overruled.
