The principle of law which declares that when an offense is committed by one person, the mere presence of another is not sufficient to characterize him as a principal offender, has often been recognized. See Branch's Ann. Texas P. C., Sec. 680; Newton v. State, 267 S.W. Rep. 272; Richardson v. State,89 Tex. Crim. 17.
In our opinion, the conclusion reached upon the original hearing in the present case portrays no departure from this rule. This case was submitted under the law of circumstantial evidence. From the State's standpoint, the evidence reveals a series of acts in addition to his presence which, in our judgment, warranted the court in instructing the jury on the law of principal offenders and which were sufficient to support the finding of the jury against the appellant upon that issue.
The point made in the motion that some of these acts come from the uncorroborated testimony of an accomplice witness is not deemed sound for the reason that it is declared by statute that in the trial of this character of cases, "the purchaser,transporter, or possessor of any of the liquors prohibited herein shall not be held in law or in fact to be an accomplice, when a witness in any such trial." (Acts of 37th Leg., 1st Called Session, Chap. 61, subdivision 2c.) Under this statute, Vosco was not an accomplice witness, and the jury was warranted in founding a verdict upon his testimony. In instructing the jury to the contrary, the court was over-generous to the appellant.
The motion for rehearing is overruled.
Overruled. *Page 127