Spero and Sicola v. State , 109 Tex. Crim. 392 ( 1928 )

The appellants were charged jointly with the possession of mash and materials for the manufacture of intoxicating liquor, punishment fixed at confinement in the penitentiary for a period of three years.

The appellant, Lewis Sicola, entered a plea of guilty, while Vincent Spero entered a plea of not guilty.

According to the state's testimony, the appellants were found living together in a small house near which there was a newly-built barn. Acting under a search warrant, some officers searched the barn and found therein no horses or stock of that nature, but 100 sacks of sugar, 142 fifty-gallon barrels of mash, a 150-gallon still, a ten-burner still base, hogshead and other articles which the proof showed were used for the purpose of making intoxicating liquor. Each of the appellants testified that he was merely a hired laborer, that he did not own the property described, and had engaged in the work but a few days. The confession of each of the appellants was introduced, from which it appears that they were each employed by a man named "John," one to stir the mash and help operate the still, the other to put water and sugar in the mixture. One was to receive $25.00 per week; the other $18.00. In the confession it was stated that no whiskey had been made up to the time of their arrest. Each of the appellants asked for a suspended sentence. A further statement of the testimony is deemed unnecessary.

There are some bills of exceptions, but they present no matter requiring discussion or authorizing a reversal of the judgment.

With reference to each of the appellants, the proposition is advanced that they were not principal offenders; that they were simply employees of a person described as "John;" that this was an exculpatory fact which appeared from their confessions which were introduced by the state and not disproved. As we view the matter, the contention is untenable. Whether they were employes of "John" or acting upon their own behalf and entirely independent of him, would not be controlling. They were, nevertheless, principal offenders within the meaning of the law. See Chap. 1, Title 3, P. C., 1925, Vernon's Ann. P. C., Vol. 1, p. 55; also Rodriguez v. State, 100 Tex.Crim. Rep.,271 S.W. 380; Ramsey v. State, 299 S.W. 411; Van Zandt v. State (11412), not yet reported.

We will add that so far as the appellant Sicola is affected, his plea of guilty admitted his liability, and the introduction of evidence was solely for the purpose of enabling the jury to fix the penalty.

The judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.