Conviction for possessing a still; punishment, one year in the penitentiary.
Appellant's motion for new trial was overruled July 2, 1928, and sixty days was granted in which to file bills of exception. Computation shows this time to have expired on August 31st. The bills of exception herein appear to have been filed September 1st of said year. Said bills were filed too late to be considered.
Appellant requested a special charge to the effect that the mere presence of a person at the commission of an offense, or his mere knowledge that an offense is about to be committed, will not make him a principal; nor will his failure to give alarm or his concealment of the offense and the offenders make him such, but to constitute him a principal with others in the commission of a crime, there must be a combination of both acts and intent, and he must act together with the others in the commission of the offense, knowing their unlawful intent, and unless the jury so believed beyond a reasonable doubt and that he did some overt act in connection with the possession of said still, he should be acquitted. We are not inclined to agree with appellant's contention that the refusal of this special charge, under the facts of this case, was erroneous. Appellant lived in a three room house with his wife and minor son. On the night in question officers with a search warrant went to said house. They testified that quite a distance before they got to the house they could smell the odor of whisky being made; that when they knocked at the door and aroused appellant he called to some one else and told them, in effect, to destroy the stuff, the law had come. In one of the rooms of appellant's house his minor son and his nephew were engaged in the manufacture of whisky. In appellant's barn a barrel of mash was discovered. There was only one cook stove in the house and upon this stove the still was located. It appears from the record that the two youths pleaded guilty to the manufacture of intoxicating liquor and were each given a suspended sentence, and both of them were introduced as witnesses upon this trial. Appellant's nephew testified that they had asked and obtained *Page 563 the consent of appellant to make the whisky in question; that he knew of the presence of the mash in the barn; that said barrel of mash had been there ten days. In such case we do not believe the special charge asked by appellant correctly presented the law of principals. In the main charge of the court we find an instruction to the effect that any person who advises or agrees to the commission of an offense, and who is present when same is committed, is a principal whether he aids or not in the illegal act; and that the jury should not find this appellant guilty as a principal unless they believe from the evidence beyond a reasonable doubt that he possessed the still either alone or jointly with the two young men mentioned, and if they had a reasonable doubt as to whether he possessed the still as such principal, they would find him not guilty. The court further instructed the jury in his charge that if they found and believed that the defendant did not know the still was in his house, and that he had nothing to do with it, and that he did not advise or agree that it should be in his house, or if the jury had a reasonable doubt of these facts, then they should acquit the defendant.
In a case where the facts show that a barrel of mash is in the barn of the accused, which could not be brought into a condition fit for the manufacture of liquor until after the passage of some days, and that whisky is being made in the house of appellant upon his stove, and in a room adjoining that in which he is in bed at the time of the arrest, we think the law of the case correctly presented in the charge referred to, and that the refusal of the special charge mentioned should not be held reversible error.
The judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.