5 S.W.2d 771 | Tex. Crim. App. | 1928
Lead Opinion
Conviction for possessing a still, punishment one year in the penitentiary.
The indictment contained five counts, but the court submitted to the jury only the first and third, which charged, respectively, the manufacture of intoxicating liquor, and the possession of a still for the purpose of said manufacture. The verdict of the jury found appellant guilty under the third count.
Officers testified that they saw appellant, his father and another man put together a still about 1 a. m., and saw them *515
put into same mash and build a fire under it, and add wood from time to time. The officers watched the performance about three hours, at which time the other two men were lying down, apparently a asleep, and appellant was chunking the fire and attending to things generally. The officers advanced and put the entire party under arrest. On the trial appellant took the stand and admitted that he went with his father and the other man to where the still was, helped them put it together, and helped put in the mash, build a fire, etc., etc. He said he knew his father was trying to make some whiskey and he was doing all he could to help him. To make whiskey save for several excepted purposes is unlawful; to possess a still for the purpose of making it is also unlawful. We perceive no sound reason for doubting that several parties may act together as principal offenders in either offense. That one who aids or assists another in those things which make out guilt under the law, does so for accommodation or for pay, would not seem to render him guiltless. That the intoxicating liquor so made or the still so possessed belonged exclusively to someone of the alleged principals, other than the appellant, would not seem to affect in anywise the question of principalship, or the guilt as principals, of the others. No such distinction exists as to who are and who are not principals in any of those ways in which persons can be such under the law. Atwood v. State,
The bill complaining that appellant was not served with or furnished a true copy of the indictment, is without merit. It is qualified by the statement that he had been served with a copy, and that his only complaint here was that one word in the fourth count in the indictment served upon him, was not correctly spelled. This count in the indictment was not submitted. The request that the court give a peremptory instruction in favor of the accused was based upon the mistaken idea as to the law of principals, which is above discussed. We find no facts in the record calling for the instruction requested in the fourth bill of exceptions.
No error appearing, the judgment will be affirmed.
Affirmed.
Addendum
Although appellant admitted in his testimony that he knew his father was trying to make whiskey and that appellant was doing all he could to assist in the enterprise, he excepted to the court's charge because the jury was not instructed that if appellant was only present and assisting in *516 an attempt to manufacture liquor and did not have possession of the still he would not be guilty. He now insists that a charge to that effect should have been given. We confess that we have not been able to follow appellant's reasoning in the matter. The effect of the charge desired would have been to tell the jury that although appellant was present and assisting in an attempt to manufacture liquor he could not be guilty of possessing the still where ownership thereof was in someone else. Such an instruction, to our minds, would have been contrary to the law of principals as announced in Arts. 65 and 66, P. C., which are as follows:
"All persons are principals who are guilty of acting together in the commission of an offense."
"When an offense is actually committed by one or more persons, but others are present, and knowing the unlawful intent, aid by acts or encourage by words or gestures, those actually engaged in the commission of the unlawful act, or who, not being actually present, keep watch so as to prevent the interruption of those engaged in committing the offense, such persons so aiding, encouraging or keeping watch are principal offenders."
We have heretofore announced in Dawson v. State,
"Two or more parties may be co-principals in manufacturing, selling, transporting, or possessing, for the purpose of sale, intoxicating liquor, and as such co-principals may be either jointly or separately indicted and prosecuted as such."
We see no reason why the same would not be true in the present case. See also Louis v. State, 102 Tex.Crim. Rep.,
The motion for rehearing is overruled.
Overruled. *517