Reep v. State

LATTIMORE, J.

Appellant was convicted in the district court of Comanche county of the illegal manufacture of intoxicating liquor, and his punishment fixed at two years in the penitentiary.

But one question is presented which, in our opinion, calls for discussion; Was there sufficient evidence before the trial court to call for the submission to the jury of the question as to whether Mrs. Earl I-Ienry was an accomplice witness? In various ways appellant presented to the court his desire to have this issue submitted, all of which were refused. The crime charged was the manufacture of whisky. The offense, if any, was commit-téd at the house occupied by Mrs. Henry and her husband. The latter was engaged in the illegal enterprise and was 'an accomplice. Mrs. Henry was present in the house, and part of the time in the room where the liquor was being made. She was on friendly terms with the .parties implicated. The stove used for cooking the mash belonged to the Henrys, 'and so did the tub in which the/men brought water from a well in the Henrys’ yard.

With the exception of the introduction of evidence as to his good reputation, no testimony was introduced for appellant. From the testimony of Mrs. Henry herself must it be determined whether the issue of accomplice vel non was raised as to her. That presence alone would not make one an accomplice is ascertained from the statutes. Article 75, P. O. One present must have advised or agreed to the commission of the offense, or else be acting with those actually committing the crime, in order to make such person an accomplice (article 78 P. C.), or must have acted in some way with the persons committing such offense (Welsh v. State, 3 Tex. App. 114), or must be shown to have had some criminal connection with the offense on trial, else a charge op accomplice testimony would not be required (Branch’s Ann. P. 0. § 702).

We reproduce the salient points of Mrs. Henry’s testimony:

“I was at home in April, 1921, when whisky was made at my house. Fred Reed was there. •* * * My husband was there. * * * They made it in a still and cooked it on the cook stove where my husband and I lived. I did not assist them in making it. I did not receive any part of it. They did the cooking in the nighttime. I wouldn’t sit up and watch them until they got through.”

On cross-examination of this witness she further- said:

“The stove was ours. I didn’t know they were going to do this till I saw Mr. Walker fixing it that night. Earl didn’t tell me about it. I don’t th'ink Earl got anything out of it. It wasn’t agreeable to me for them to use the stove and cook it there. * * * I said nothing to them about it. * * * I did not put wood in the stove. * * * None of the whis-ky was left there. * * * They didn’t use our stove wood. Mr. Walker brought wood. I was in there awhile with them. * * * I didn’t invite them to my house, nor did I tell them to leave. * * * They used a tub. It was our tub, and they brought water from our well with it and poured it in a keg. * * * I didn’t make Earl quit. * * * I didn’t tell him to get the stuff out of there. * » * I guess Earl had charge of the house and the things in it.”

We have carefully considered this testimony in the light of the opinions of this court and find nothing in it which supports any reasonable belief that Mrs. Henry had any guilty connection with the making of-this liquor. Her husband was present acting with the other parties. She was not asked to - aid or assist, nor to advise or agree to what was done. That community property was used by the husband for the commission of the offense could give rise to no sort of charge against her, in the absence of some evidence indicating more than a mere lack of resistance on her part, or failure to object. We find no evidence of any acting together as far as she was concerned. The case occupies a different attitude than it would if she had gone voluntarily with her husband or appellant to some place other than her home, where the crime was to be committed, in which ease there mi£ht arise some .inference of an acting together. Mrs. Henry, at the time this liquor was made, was at her home where her presence properly was, and she seems to have entirely refrained from any sort of participation in the acts of the men. The house was a small one, and it is trae she did not run away, but attended to her baby and then went to bed. In our opinion the trial court did not err in refusing to submit the issue of accomplice testimony. The evidence supports the verdict. We are unable to perceive error in placing appellant on trial separately from the others charged in the same indictment with him.

Finding no error in the record, the judgment of the trial court will be affirmed.