Howard v. StateHoward v. State
- Reporters:
- , ,
- Before:
- Dattimore
Lead Opinion
Aрpellant was convicted in the District Court of Kaufman County of the offense of manufacturing intoxicating liquor, not for mеdicinal, scientific, mechanical or sacramental purposes, and his punishment fixed at confinement in the рenitentiary f or 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 оr 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 aсcomplices, 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 aсcomplices. 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 thаn one occasion. The only ground upon which any claim is put forward by appellant that she was an acсomplice, 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 еvidence 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 thе 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 thеreof, 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 purchasе, however, would be but a circumstance in a case wherein the charge was manufacturing.
It appears tо be the law of this State since 1913, that unless the charge of the court be fundamentally erroneous, either in its affirmativе statement of the law, or by reason of its failure to state the law, an error therein will not be held reversible unless thеre be” exception taken to such charge at the time it is given, or a charge correctly presenting thе matter be refused. Art. 735, Vernon’s C. C. P.; Childs v. State, 81 Texas Crim. Rep., 21, 193 S. W. Rep., 664; Debth v. State, 80 Texas Crim. Rep., 4, 187 S. W. Rep., 341. When there is no question but that the record in a given case presents amplе corroboration of the accomplice testimony; or when it does not appear that the conviction rests upon the uncorroborated testimony of accomplices, the .failure of the trial court tо submit that issue would not be held reversible error by this court in the absence of such exception.
We are not at аll inclined to agree with the contention of appellant that this conviction is not supported by the testimony, оr that it rests upon the uncorroborated testimony of accomplices.’ Appellant was representеd 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
ON rehearing.
October 12, 1921.
EATTIMORE, Judge.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 Texas Crim. Rep., 205, 210 S. W. Rep., 804, we said:
*167 “No rеquest for the submission of the questions whether the rule of accomplice testimony governed the state’s witnesses hаving 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. Cr. Rep., 591, 90 S. W. 641; 122 Am. St. Rep., 772; Wright v. State, 7 Tex. App., 574; 32 Am. Rep., 599; Allison v. State, 14 Tex. App., 122; Tones v. State, 48 Tex. Crim. Rep., 368, 88 S. W. 217; 1 L. R. A. (N. S.) 1024; 122 Am. St. Rep., 759. If the contrary were true,, however, we think the circumstances detailed in appellаnt’s ‘testimony afforded sufficient corroboration.” This is approved in Chandler v. State, 89 Texas Crim. Rep., 599, 230 S. W. Rep., 1003. If certain witnesses were accomplices, as contended by appellant, but which we are not prepared to admit, still it appearing in the record that there is ample evidence to corroborate said witnesses, the failure to submit such issue by the court would not constitute reversible error.
The motion for rehearing is overruled.
Overruled.