The writer is unable to concur in the affirmance of the judgment.
The State relied upon the testimony of Earl Henry and his wife. Henry testified that he and the appellant made whisky together at the home of Henry, and described in detail the manner in which it was done, and on cross-examination testified that it was done more than once, that his wife was present; that the kitchen stove was used in making the whisky; that she took no actual part in the making of it.
Mrs. Henry testified that appellant and her husband made whisky at her house twice; that they used a copper still and cooked the whisky on the cook stove, in the house in which she and her husband lived, which consisted of three rooms, two of which they were using; that she did not assist in making the whisky or received any part of it; that they cooked it in the night-time; that it was not agreeable with her but she never said anything to them about it. She got none of the whisky and her husband got none of it so far as she knew. The whisky was made at her house but was afterwards carried away. She made no protest, but was friendly with Reed and Walker, who also acted with them, and at times she was in the room talking to them while the operations were going on. She went back and forth at will; that she knew they were coming and what they were coming for; that they used a tub for bringing water and put a cooling iron in the keg; that they got water out of a well in the yard to the house occupied by herself and her husband. That she was there each time the whisky was made; that afterwards her husband and Walker made whisky under the same circumstances when the appellant was not present.
Earl Henry was under indictment for murder and also for the manufacture of intoxicating liquors. The court instructed the jury that he was an accomplice and that to convict the appellant corroboration of his testimony was required.
From the testimony of Earl Henry, a witness for the State, the evidence shows that he and Fred Reed and Otto West made whisky at the house of Henry, by using a copper pot and cooking the whisky on the cook stove. The mash was boiled with meal and sugar and let stand for five days, then boiled off. This was done at night. It was *Page 21 done in the presence of the wife of Earl Henry. The family consisted of himself, his wife and one child, two years old. The kitchen stove was used. The house contained two rooms, and at times his wife was in the room. She did nothing but looked on. She owned an interest in the cook stove. The witness was interested in making the whisky. At one time he was paid in money, and as I understand the record, at other times he was paid in whisky. According to his testimony, they gave him so much money the first time for the use of his premises, but the last time they divided the whisky.
Mrs. Henry testified that the whisky was made in a copper still on the cook stove in the dwelling house in which she and her husband lived, which was a two room house; that the cooking was done at night; that she retired before they got there; that on three different occasions this occurred; that she expressed to them no objection as they were friends of hers; that she neither invited them to come nor told them to leave; that she knew what they were coming for; that they used a tub belonging to her and her husband to bring water from a well on the premises used by her and her husband; that she was there and saw them make the whisky each time that it was made and was in conversation with them occasionally during the process. Bearing in mind that within the meaning of the statute, requiring corroboration of accomplice witness, the term "accomplice" applies to all persons connected with the crime by any unlawful act or omission, transpiring either before, at the time of, or after the commission of the offense, and whether the witness was present or participated in the crime or not (Robert v. State, 88 Tex.Crim. Rep. Chandler v. State, 89 Tex.Crim. Rep.; Chandler v. State, 231 S.W. Rep., 107), the question therefore arises: Was there evidence which brought Mrs. Henry within the scope of this definition? If there was such evidence, then the status of the witness became a question of fact, notwithstanding she, by her own testimony, gave evidence which, if true, would exculpate her from any criminal connection, affirmative or negative with the offense. Franklin v. State, 89 Tex.Crim. Rep., 230 S.W. Rep., 692; Chandler v. State, 230 S.W. Rep., 999; Hornbuckle v. State, 86 Tex.Crim. Rep..
There being evidence from which the jury might have drawn the inference that the witness was an accomplice, the court was not warranted in refusing to submit the issue to the jury, although there was other evidence from which the jury might have formed a contrary conclusion. Smith v. State, 89 Tex.Crim. Rep., 229 S.W. Rep., 523.
Appellant requested the court to instruct the jury in appropriate language to determine whether Mrs. Earl Henry was an accomplice, and if so that her evidence would not be sufficient corroboration. This the court refused to do, and in doing so, in the opinion of the writer, *Page 22 committed error. McElroy v. State, 53 Tex.Crim. Rep.; Branch's Ann. P.C., Sec. 702. Under our statute, there was no presumption that she was acting under the command of her husband (Article 36, of the Penal Code), and there was no evidence to that effect. Under the circumstances there was no impediment to her occupying the relation of principal or accomplice. Barker v. State, 64 Tex.Crim. Rep.. She was present when the unlawful act was committed and knew in advance that it was about to be committed, and the evidence is such as authorized the jury to conclude that she consented to it. Her utensils were used in manufacturing the whisky; her house was used as a shield against detection, and the inference that she, knowing of the unlawful act, aided or encouraged its commission, is not unauthorized. It cannot be said, as a matter of law, that she was not a principal offender under some of the provisions of Title 3, Chapter 1 of the Penal Code. Her testimony was essential, for without it the accomplice Henry is not corroborated.
The refusal of the court to give the instruction mentioned is error prejudicial to the appellant and should result in a reversal of the judgment.