If the writer comprehends the facts, John Watson and Hilda Watson, were husband and wife. They lived together in their private residence. A search of the residence revealed the presence of a quantity of beer. At the time of the search John Watson was not present. Hilda Watson was at *Page 122 their home. They were each indicted for the possession of intoxicating liquor. An effort upon the part of the appellant to have her husband first tried resulted in a dismissal of the case against him for possession. He was also under indictment for the manufacture of the same liquor. Other than the finding of the liquor at the home, the presence of the appellant, Hilda Watson, and the fact that she was the wife of John Watson, there is in the record no evidence of her guilt. She might have been a principal offender with her husband in the possession of intoxicating liquor for the purpose of sale, but her conviction of that offense would be justified upon proof not only that she was present in her home but that she agreed to the commission of the offense by her husband or that she aided or encouraged him in the commission of the offense.
The appellant testified that she had nothing to do with the making of the beer; that on some former occasions she had separated from her husband because he had persisted in making beer. There was no direct evidence that any liquor had ever been sold upon the premises. There was direct evidence that the particular liquor seized as the result of the search was made by the husband of the defendant. All the State's witnesses disclaimed having any knowledge of the appellant having anything to do with the making and selling of the liquor. Reliance was had upon the fact that the place was searched and liquor found. She was at home but her husband was not there. It was in evidence from the State's testimony and undisputed that her husband lived with her at the place where the beer was found.
Our statute, Art. 33, P. C., 1925, takes note of the fact that in the domestic life of the husband and wife, conditions arise in which the husband may commit an offense in his home and in the presence of his wife without her of necessity being a participant in the unlawful act. Art. 32, P. C., reads thus:
"A married woman who commits an offense by the command or persuasion of her husband shall in no case be punished with death, but may be imprisoned for life or for a term of years, according to the nature of the crime; and in cases not capital she shall receive only one-half the punishment to which she would otherwise be liable."
The precedents touching receiving stolen property are somewhat analogous as indicated by the following quotation from Bishop's Criminal Law, 9th Ed., Vol. 2, p. 847, sec. 1142:
"It is possible for husband and wife to incur joint guilt by a joint receiving; but this result will not follow under all circumstances in *Page 123 which they would be jointly liable if single. . . . According to general principles, as explained in the first volume, proof of a mere joint receiving, and no more, would be inadequate to convict the wife, while it would justify a verdict against the husband. But if the evidence went further and showed affirmatively that the wife, being the more active one, was in no way influenced by the husband, she might be convicted of the receiving jointly with him."
Somewhat like the present on the facts is the case of Reed v. State, 93 Tex.Crim. R., in which the accused was tried for the manufacture of intoxicating liquor at the home of Earl Henry. Mrs. Earl Henry was present, and the following is the substance of her testimony:
"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."
In the original opinion of this court, written by Judge Lattimore, it was held that the witness was not only not an accomplice witness as a matter of law but that there was no issue of fact upon which the jury could find her an accomplice witness. From the opinion we quote:
"We find no evidence of any acting together as far as she was concerned. The case occupies a different attitude than it would if she had gone voluntarily with her husband or appellant to some place other than her home, where the crime was to be committed, in which case there might arise some inference of an acting together. Mrs. Henry, at the time this liquor was made, was at her home where her presence properly was, and she seems to have entirely refrained from any sort of participation in the acts of the men. The house was a small one, and it is true she did not run away but attended to her baby and then went to bed. In our opinion the trial court did not err in refusing to submit the issue of accomplice testimony."
It was not contended or suggested that Mrs. Henry was guilty as a principal offender but on motion for rehearing the court reached *Page 124 the conclusion that her connection with her husband and Reed in the commission of the offense was of such a nature that the jury would have been called upon to determine whether or not she was an accomplice witness requiring corroboration.
From the record it is apparent that the State regarded the husband as an actor in the commission of the alleged offense. It also appears from the record that he was under indictment both for the possession and the manufacture of the liquor that was found upon his premises. She being in the home, we are constrained to reaffirm our conclusion heretofore stated that the mere presence of the wife in her home under the circumstances developed from the record connecting her husband with the offense would not warrant her conviction as a principal. That to so hold her it would be essential that there be produced some evidence of an affirmative nature bringing her within the scope of the law of principals as defined in Chapter 1, Title 3, of the Penal Code.
The motion for rehearing is overruled.
Overruled.
DISSENTING OPINION.