Hernandez v. State

Offense, the unlawful manufacture of intoxicating liquor; penalty, eighteen months in the penitentiary.

Officers at nighttime came upon appellant and another Mexican in a secluded spot. There was found at this place a complete still in operation, two barrels of mash of about forty gallons each, and a jug half full of whiskey. At this time and place officers observed appellant punching up the fire under the still. Both Mexicans fled upon discovery of the presence of the officers and appellant was thereafter apprehended in some bushes nearby where he had hidden.

Appellant insists that the Court erred in not charging on circumstantial evidence. The proven facts show that appellant was caught assisting in the actual operation of a still. He was in such juxtaposition to the main fact to be proved as made the testimony, we think, direct and a charge on circumstantial evidence was therefore not required. Holt v. State, 9 Tex.Crim. App. 582; Wilkerson v. State, 300 S.W. 942.

The claim is made that a charge on principals under the above recited facts was a charge on the weight of the evidence. The Court gave the usual, and we think a correct, charge on principals and there being positive testimony that defendant and another were acting together, we think said charge was applicable and was in no sense a charge upon the weight of the evidence. Coggins v. State, 68 Tex.Crim. Rep..

Appellant's defense was that he was accidentally present at the scene of the crime and did not participate in any way in its commission and had had nothing to with either the ownership or the operation of the still. This defense was, we think, fairly and pertinently submitted to the jury by the Court.

The evidence being sufficient and there being no errors shown in the record, the judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.