Lead Opinion
The appellant was convicted in the District Court of Knox County for unlawfully transporting intoxicating liquor, and his punishment assessed at five yeаrs in the penitentiary.
It was the contention of the State in this case that the appellant and one Donnegan were togеther and guilty of unlawfully transporting about forty gallons of whiskey in an automobile, in Knox County, at the time of having a collision with the occuрants of another car. The appellant contended, and introduced evidence to the effect that he was not in Knоx County at the time in question, knew nothing of said collision, and had no interest in said whiskey.
The appellant has not favored us with a brief, but the rеcord discloses five bills of exceptions. Bill of exception No. 1 complains of the refusal of the court to give the jury appellant’s special charge to the effect that unless they believed that the defendant had some guilty connection with.the transportation of the intoxicating liquor, in Knox County, to acquit him. We are of the opinion that there is no merit in this contention, аs the court in his general charge instructed the jury that if they had a reasonable doubt as to the presence of the defendant at the time and place where the offense was alleged to have been committed, to acquit him. The indictment charges the offense in Knox County, and we believe the court’s charge sufficiently covered the issue presented in said special сharge, and there was no error in refusing to give same.
Bill of exception 2 complains of the action of the court in refusing tо charge the jury that Donnegan was an accomplice, and that they could not convict the defendant upon his testimony *176 alone. Art. 670 of the new Penal Code, which was in force at the time of this trial, specifically states that the purchaser, transporter or possessor of intoxicating liquors shall not be held in law or fact to be accomplices, and no other reasоn for asserting that said witness was an accomplice is set up in the bill. The .testimony of the State, if believed, showed clearly that thе witness Donnegan and the appellant were transporting whiskey at the time and place alleged in the indictment. Under said Article; supra, we are of the opinion that the court committed no error in refusing to submit this charge:
Bill 3 complains of the action of the court in defining in his general charge who are principals. This bill as presented shows no error in this particular.
Bill 4 complains of the action of .the court in permitting the district attorney to prove by the sheriff that a cap was found in the car alleged tо have beén occupied by the appellant and the witness Donnegan at the time of the collision, because apрellant contends it was not shown that he had any connection with same. The record discloses that the State’s witnesses testified thаt after the collision the appellant walkpd off from the car bareheaded. We fail to observe any error in admitting this testimony, and are of the opinion that same was admissible as a circumstance connecting the defendant with the alleged оffense.
Bill 5 complains of the action of the court in permitting the witness' Donnegan to testify that appellant told him there werе 42 gallons of whiskey in the car in question. This bill as presented shows no error in the action of the court in admitting this testimony. After a careful examination of the entire record, we are of the opinion that the judgment of the trial court should be in all things affirmed, and it is acсordingly so ordered.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Aрpeals, and approved by the Court.
Morrow, Presiding Judge, absent.
Addendum
ON MOTION for rehearing.
The court instructed the jury on the law of principals. Objection was urged to the submis *177 sion of thаt issue upon the ground that it was not raised by the evidence.
The charge on alibi was in these words:
“If you should entertain a reasonable doubt as to the presencе of the defendant at the time and place where the offense is alleged to have been committed you will acquit the defendant.”
Objction to this charge was also urged.
The issue of principals was, we think, clearly raised by the testimony of Donnegan, who was definite in his statement that the apрellant was present and was the owner of the whiskey. Donnegan’s testimony leads us to the conclusion that he knew that the whiskey was in thе car. According to his testimony, he and the appellant were joint transporters. If Donnegan’s testimony was believed, the two wеre principals under Art. 65, P. C., 1925, which declares:
“All persons are principals who are guilty of acting together in the commission of аn offense.”
The only complaint of the charge on principals is that the-evidence fails to raise it. However, we fail tо perceive any tangible objection to the form used in instructing the jury upon that subject. The circumstances were clearly such, we think, as warranted evidence of the identity of the cap, which was found in the car after the wreck. Donnegan testified that on the day of the offense, he was in Knox County in a.Dodge car with the appellant. The witness said he had whiskey in the car; that appellant said there were forty-two gallons; that they were driving down the road and another car drove into them. Both cars were wrecked and some of the whiskey ran out. A number of people, including officers, appeared. Appellant was wearing a cap at the time. Donnegan knew that the appellant left his cap there as he found it later.
We think the objection to the testimony of Donnegan that the appellant told him there were forty-two gallons of whiskey in the car is untenable.
According to the appellant, he was not present at the time of the transaction. It was incumbent upon the court to submit the State’s theory arising from the evidence as well as that of the appellant. The appellant’s theory was alibi. The charge upon thаt subject, which is quoted above, has been approved and is deemed sufficient. See Harris v. State,
*178 Appellant complains of the refusal of an instruction that unless the jury believed that appellant had sоme guilty connection with the transportation of the whiskey in Knox County they should acquit him. We fail to find any cogent evidence raising the issue of venue. The only defensive theory which has been perceived is that of alibi, which was submitted to the jury.
The motion for rehearing is overruled.
Overruled.