It is earnestly insisted that the evidence is insufficient. Upon further consideration we think such contention sound. The court charged on the law of principals and also instructed the jury that mere presence at the place where the offense was committed was not sufficient to warrant a verdict of guilty. The state relied upon circumstantial evidence, and an instruction covering the subject was embodied in the charge. The circumstances were as follows: Officers found a large quantity of beer in the house occupied by appellant and her husband as a private residence. Appellant was at home at the time, while her husband was away. There was an open beer bottle with a small amount of beer in it on a table. Appellant was doing nothing in connection with the beer. The officers testified that they did not know who owned the beer. They further said that they did not know whether appellant had tried to sell any of it. Appellant's husband had been indicted for manufacturing and possessing for the purpose of sale the identical beer found by the officers. Appellant testified that the beer belonged to her husband, he having manufactured it. She denied that she had any connection with it whatever, and declared that she had at one time separated from her husband because of the fact that he persisted in making beer.
Appellant's husband was the head of the household. Appellant was in her proper place in the home when the raid was made. She was doing nothing in connection with the beer when the officers appeared. She was merely present in the home presided over by her husband. These facts show no more than appellant's bare presence at a place where it was proper for her to be. There is nothing to *Page 120 show that appellant agreed to commit the offense or that she in any manner encouraged her husband in the commission of the unlawful act. Mere presence, in the absence of proof of having agreed to commit the offense, will not constitute one a principal. Branch's Ann. Tex. Penal Code of Texas, Sec. 681, page 347. With the case being tried on the theory that appellant aided her husband to commit the offense, the state failed to show more than that appellant was present in her husband's home when some beer was found therein.
The motion for rehearing is granted, the judgment of affirmance is set aside, the judgment of the trial court is reversed and the cause remanded.
Granted, and cause reversed and remanded.
DISSENTING OPINION.