ON REHEARING. November 29, 1922. It is earnestly insisted that the majority opinion is wrong in holding that it was not error for the court to omit submission of the question of complicity of Mrs. Henry to the jury. The facts are very fully stated in the two opinions. There is one circumstance not mentioned in either which has some bearing on the matter. It appears from Mrs. Henry's evidence that after appellant's and Walker's connection with manufacturing whisky at Henry's house ceased, Henry and another party made whisky there also, and that her husband got half of the whisky for his part. We are not called upon to determine whether Mrs. Henry was in fact an accomplice but whether the facts and circumstances in evidence raise the issue. In determining that question it would be well to forget the relation of husband and wife, and thereby dismiss the possible presumption that Mrs. Henry may have been dominated by her husband, because that is an argument to be addressed to the jury whose duty it is to settle the very issue of fact which appellant contends should have been submitted.
If A. in connection with others, should engage in the manufacture of whisky in a house owned and occupied jointly by A and B, and for that purpose use property which also belonged to them jointly, such as the stove and cooking utensils, and B. should be present on one occasion, but denying advance knowledge of what was going to happen and also of any interest in the result thereof and no facts *Page 23 showed any aid rendered by him, then it might be that the facts were insufficient from which a jury could determine that B had any complicity therein; but if it could be shown that repeated acts of manufacturing whisky in the house jointly owned by A and B were committed by different parties acting with A at all times using the property over which B had as much control as A and that B was at all times present, making no protest thereat, it could hardly be said with reason that although B. may have denied that he was in any way aiding or encouraging the commission of the offense or had any interest in the result thereof, that the facts and circumstances would not be of such a character that therefrom the jury might conclude that even in the face of B's denial he may have had some criminal connection therewith. The more offenses committed in B.'s presence, upon their joint premises and with their joint property, the greater would be the suspicion as to B's complicity therein. That seems to be the condition in the instant case. It is true Mrs. Henry denied that she had any part in the illegal enterprise going on in the house occupied by her and her husband, or that she in any way encouraged or aided in it, and it may be that the jury would have accepted her version of the matter. On the other hand, the jury saw the witnesses, were in a better position to judge than are we whether she was likely to have been dominated by her husband in the transaction, and from all the facts and circumstances might have concluded, notwithstanding her denial, that she came within the rule of an accomplice witness. There is no legal proposition involved in the matter before us; it is simply a question to determine from the facts and circumstances whether the court should have left it to the jury to say whether she was an accomplice. The very fact that we ourselves have had trouble in agreeing upon the matter is rather persuasive that the question is not without difficulty, and has led us to believe that possibly we were wrong in holding that the court committed no error in withholding this issue from the jury.
So believing, the judgment of affirmance is set aside, the motion for rehearing is granted, the judgment of the trial court is reversed and the cause remanded. Judge Lattimore adheres to the views expressed in the original opinion that the evidence did not raise the issue; but no principle of law being involved he does not deem it necessary to write further.
Reversed and remanded. *Page 24