Appellant was convicted in the District Court of Ellis County of the offense of manufacturing intoxicating liquor, and his punishment fixed at one and onе-half 'years in the penitentiary.
The State introduced Gus Mitchell and Mary Mitchell who testified that appellant brought a still to their house аnd set it up and made whisky. On one occasion he made about fivе gallons and on another occasion he made two gallоns. Each of said witnesses drank of the liquor and appellant seems to have given them a part of it. There is *51 other testimony in the reсord which would seem to indicate sufficient comiection of sаid witnesses with the commission of the crime to have justified the court in submitting to the jury the question of their being accomplices. The court did nоt charge on the law of accomplice testimony. Apрellant asked a special charge submitting this issue to the jury, which was rеfused, and a bill of exceptions was taken. We would uphold appellant’s contention but for the further fact, apparent • frоm the record, that appellant himself testified admitting fully that at the home of said Mitchells he made the liquor testified about by them. From aрpellant’s testimony we quote:
“I found the still that was at Gus Mitchell’s one day while I was in Chambers Creek bottom hunting. It was hid under some brush. After I went home I got my fаther’s car and went down there, got the still, carried it up to my father’s hоuse and hid it. This was a short while before Christmas 1921. I got some corn chops there in Italy and took some sugar from my father’s store and got a bаrrel that was setting in an alley back of Mr. Kauthen’s store there in Italy аnd one night I took them all over to Gus Mitchell’s house and put them in a little smoke house and locked them up. A few days before Christmas I went over there and put the still up in Mary Mitchell’s kitchen one night and ran off about five gallons of corn whisky. I gave Mary and them about a half a gаllon of it and took the balance of it over home, my father’s and we all drank it up. That was my cousin, myself and the family. I never sold any of this whisky tо any one and never tried to sell it to any one and didn’t make it to sell. After that about the 15th or 16th of January I went over there and made twо gallons more. I made that for myself, gave part of it to Mary Mitchеll and her mother. I never made any of that to sell and didn’t sell any of it. I сarried it home in my father’s automobile and left it in there and that night the law came and got the whisky and arrested me.”
Article 743 of our Code of Criminal Procedure forbids the reversal of a case for errоrs in 'the charge unless such error was calculated to injure the rights оf the defendant or same make it apparent that he has not had a fair and impartial trial. Where the accused takes thе witness stand and himself admits the facts testified to by the accompliсes and which constitute the offense, we do not believe he can complain of the failure of the court to submit the law of accomplice testimony. In Trent v. State,
No reversible error аppearing in the record, the judgment of the trial court will be affirmed.
Affirmed.