Appellant's motion is based on a misconception of the facts. The Mexican celebration which was in progress, was a public affair. There is not a suggestion in the record that appellant had any connection with the grounds on which same was being held. If he had been one of those who rented the ground for the purpose of holding the celebration, this would have given him no right to transport liquor thereto or thereon, but not a word of evidence supports the statement in appellant's motion that "Appellant and other Mexicans had rented said property". The grounds were enclosed. No witness said there were any automobiles within the enclosure. The officer who first saw appellant in the *Page 14 grounds said he was "walking in the grounds from the entrance or the gate where they entered the Mexican celebration * * * had a bundle under his arm * * *. It was a big bundle with a newspaper wrapped around it * * * about the size of a gallon jug or jar." The officer further testified that as appellant crossed the grounds he motioned to two other Mexicans who followed him around the corner of the dance hall. In a moment or two the officer went to where the men had gone and found the three Mexicans with the gallon jug of whisky, and near by lay a newspaper which looked as though it had been wrapped around something. Appellant told them it was his whisky, said he got it from a white man in a big automobile. The officer carried him out of the grounds to an automobile.
Appellant testified that he gave money to Vicente Fonseca to get whisky with, and was told by Vicente that he went over on the other side of the river to get the whisky. Appellant denied having brought the whisky to where the officers said they saw and found it and him, but said that Vicente brought it. These facts in evidence sufficiently show that appellant brought the liquor to the celebration, and that he transported it within the meaning of the law. Warren v. State, 250 S.W. 429; Hill v. State, 256 S.W. Rep. 921; West v. State, 248 S.W. Rep. 371, and Lamb v. State, 255 S.W. Rep. 424, in nowise hold contrary to what we have just said.
Appellant further insists that if guilty at all, he was but an accomplice. Neither the State's testimony nor that for the appellant supports such a theory. That three Mexicans were interested in or connected with this transaction seems without dispute. Appellant testified that three of them contributed the money with which the whiskey was bought. Scrutchin, Sanderson and Crook all testified that there were three and but three Mexicans engaged either in carrying the whisky or following each other to the place where they began to drink it and where the arrest took place. The State witnesses say appellant was the one carrying the jug and that the others were following or accompanying him. Appellant swore that Vicente got the jug of whisky with money furnished in part by him, appellant, for that purpose. Appellant said in his testimony. "We all got together and went to the place where we were drinking, me, Vicente and Francisco." One whose connection with a crime ends before its actual commission is an accomplice; but any person who shall engage in procuring aid, arms or means of any kind to assist in the commission of an offense, while others are executing the unlawful act, (Art. 76 P. C.) or any person who advises or agrees to the commission of an offense, and who is present when the same is committed, — is a principal, whether he aids or not in the illegal act. Art. 78, P. C. If, therefore, appellant gave money to Vicente *Page 15 to procure the whisky with and the latter went across the river in pursuance of this agreement, got the whisky and was joined by appellant and Francisco while he was bringing the liquor back to the point where they were to drink it, this would make appellant guilty as a principal offender with Vicente in the transportation. If appellant be guilty by reason of his own transportation from some automobile or other point, — or by reason of being present advising and agreeing to such transportation by Vicente, he could be found guilty under either of these facts under the form of the indictment presented against him.
The court's charge told the jury that all persons who act together in the commission of an offense are principals, * * * and that the true criterion in determining who are principals is: Did the parties act together in the commission of the offense, etc., etc. The exception leveled at this latter paragraph of the charge seems hypercritical and without support. As above indicated, we think a charge on principals called for by the testimony, and that appellant might be found guilty either on the theory of his acting as the actual transporter, or on the theory of his acting together with Vicente.
Upon more mature consideration we have concluded that we were in error in the following matter. The learned trial judge did not submit in his main charge the law applicable to circumstantial evidence, but did give a special charge requested by appellant instructing the jury that the case was to be decided on that theory. When this special charge was given it became a part of the law of the case and was entitled to receive the same consideration at the hands of the jury as those instructions contained in the main charge. Such a charge should be given for no other purpose than that it is the law of the case. Manifestly it would be erroneous for the trial court to give an instruction to the jury, and in the customary language tell them they are to receive the law from the court which is herein given them, and then the State's attorney be permitted to assault any part of the charge and tell the jury that it is not the law and the court knows it is not the law and did not intend for them to be governed thereby. By an appropriate bill of exceptions in this case it is shown that in the closing argument for the State, and in the last few minutes of same, the district attorney told the jury, in substance, that this was not a case on circumstantial evidence, and that the court did not believe it to be such case, and that the court had simply given to them the special charge because appellant's counsel had requested same, and that it had been requested only by appellant's counsel in order that they might make a big speech in the case. Said bill further shows that at once after these statements the argument closed, and appellant asked that the *Page 16 court give to the jury a special charge telling them again that the case was one on circumstantial evidence, and further that they should consider the special charge already given as the law of the case and entitled to the same weight and consideration as the general charge; and further that they should not accept the statement of the district attorney to the effect that the court did not believe this a case on circumstantial evidence the court refused to hold the jury until additional charges were prepared by appellant containing the matters just referred to, but told them they could consider the charges as prepared and refused. The court attaches a qualification to the bill of exceptions which does not seem to us to relieve the situation at all. The court may not give verbal charges to the jury, nor may he so sanction statements as to the law of the case made by the district attorney as in effect to make his approval thereof nullify charges already given. If this was a case on circumstantial evidence, as instructed by the court, the assault permitted by the district attorney should not have been allowed. We think this conduct of the district attorney and of the learned trial judge such as to necessitate a reversal of this case. The motion for rehearing is granted, the judgment of affirmance set aside, and the case is now reversed and remanded.
Reversed and remanded.