Van Zandt v. State , 109 Tex. Crim. 513 ( 1928 )

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 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,277 S.W. 665; Riojas v. State, 277 S.W. 640.

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.

ON MOTION FOR REHEARING.