The offense is manufacturing intoxicating liquor; the punishment confinement in the penitentiary for one year.
The facts upon which the prosecution was based are these: Appellant was arrested by an officer at a point twenty or twenty: five steps from a still. The still had a fire under it, was in operation and whiskey was dripping from the worm. Near the still *Page 330 there were fourteen gallons of whiskey. The still was located in a concealed place where the ground was muddy and marshy. Prior to arresting appellant the officer watched appellant gather an armful of wood, which he placed on his shoulder. Appellant started in the direction of the still and the officer followed him for fifteen or twenty steps. The officer then stopped appellant and appellant dropped the wood. Whereupon the officer asked appellant what on earth he meant, and appellant replied that he wouldn't have done it if he hadn't been head over heels in debt. There was whiskey mash on appellant's clothing, and he was wet and muddy. A man by the name of Will Sparks was arrested while running away from the still.
Appellant testified in substance that he was looking for certain parties and that hearing someone talking he called them; that someone answered him from a concealed place, and told him to bring an armful of wood with him; that he thought the parties who spoke to him were boys engaged in barbecuing meat of some kind; that in compliance with their request he picked up some wood and had started in their direction when he was arrested by an officer. Appellant denied that he knew anything about the still, testified that he had never been about it or seen it and knew nothing of the unlawful manufacture of whiskey, and had no connection with any such enterprise. He further denied that he made the statement attributed to him by the officer. Several witnesses testified that appellant was in a place other than in the vicinity of the still for several hours previous to a short time before he was arrested.
We find one bill of exception in the record. This bill preserves appellant's exception to the action of the court in overruling his objections to the charge.
As shown by appellant's bill of exception, his first complaint is that the court erred in embodying in his charge an instruction on the law of principals, it being urged by appellant that the evidence was insufficient to raise an issue authorizing such instruction. We are unable to agree with appellant that the testimony does not raise the issue that appellant and another were acting together in the commission of the offense.
Appellant's next complaint is that the court erred in failing to charge the converse of the theory of the state that appellant and Sparks were principals. In paragraph 5 of his charge the court instructed the jury in substance that if they believed beyond a reasonable doubt that appellant either alone or acting together with another person, namely Will Sparks, did on or about the time and place charged in the indictment manufacture *Page 331 spirituous liquors capable of producing intoxication, they would find him guilty and assess the proper punishment; and that unless they so found they would not find him guilty. An inspection of paragraph 6 of the court's charge discloses that it covers the converse of the state's theory, and that it is an affirmative presentation to the jury of the defensive theory. It follows that we are unable to sustain appellant's contention.
Appellant complains of the action of the trial court in failing to instruct the jury on alibi. The court, in substance, instructed the jury that if they had a reasonable doubt as to whether appellant had been at the still prior to the arrest they would acquit him. We think this instruction was sufficient to cover the issue raised by appellant that he had never been to the still previous to his arrest.
Finding no error, 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.