ON MOTION FOR REHEARING.
MORROW, Presiding Judge.Love Kimbrough, the sheriff, testified that he knew where G. L. Miers resided on and prior to June 6, 1932; that upon a search of the appellant’s premises he found the articles named in the original opinion, including three pints of whisky and a quart of alcohol. Staying with the appellant were two men who had been living at the house *156for several weeks. The names of the men were Johnson and Whitehead. Prior to the search, the appellant had been seen near the place a number of times, both in daytime and nighttime. The sheriff noticed considerable traffic around the house and a number of cars coming and going. Several cars were parked at the house at one time. The witness had seen cars at the house but could not tell the numbers on them.
Neither the appellant nor either of the men who were his companions at the time of the raid gave testimony upon the trial.
Appellant presented the issue of a suspended sentence. The evidence was conflicting touching the appellant’s reputation, though several witnesses testified that his general reputation as a peaceable, law-abiding citizen was bad. Appellant was a young man about nineteen years of age.
Adverting to the recitals of the evidence upon the original hearing as well as that noted above, it is thought that we are not justified in reversing the case for want of sufficient evidence. It is also thought that no error was committed in charging upon the law of principals. If, however, it was unnecessary to give the charge, it could not be regarded as harmful to a degree that would justify a reversal of the judgment. The case of Durham v. State, 16 S. W. (2d) 1092, is not deemed authority as supporting the contention of the appellant.
The motion for rehearing is overruled.
Overruled.
ON MOTION TO ABATE THE PROSECUTION.
MORROW, Presiding Judge.Appellant was indicted in October, 1932, for the possession of intoxicating liquor for the purpose of sale. He was tried and notice of appeal to this court given on October 25, 1932. The record was filed in this court on January 6, 1933. The judgment was affirmed on April 19, 1933, and motion for rehearing was overruled May 24, 1933.
By affidavit made on May 25, 1933, and thereafter filed in this court, appellant seeks to have the affirmance set aside and the prosecution annulled upon the claim that during the April, 1933, term of court he was required to give testimony on behalf of the state in the case of Raymond Johnson, it being stated in the affidavit that the said Raymond Johnson was indicted as a co-principal with the appellant in the offense mentioned. Appellant relies upon article 694, P. C., 1925, which reads as follows:
“No person shall be excused from testifying against per*157sons who have violated any provision of this chapter for the reason that such testimony will tend to incriminate him, but no person required to so testify shall be punishable for acts disclosed by such testimony.”
In support of his claim that the judgment of conviction should be annulled, appellant cites the following cases: Dodson v. State, 232 S. W., 836, and Griffin v. State, 66 S. W., 782.
We refrain from discussing the legal question which the appellant attempts to present for the reason that the claim, as presented, cannot be considered for the reason that it comes by ex parte affidavit only and was not made an issue in the trial court either by plea in abatement or by other appropriate plea. See Dodson v. State, supra. In any inquiry on the subject, the question of the circumstances under which the testimony is given is one of fact, and upon the facts the question of immunity depends.
See Coleman v. State, 42 S. W. (2d) 1019, in which it is restated that testimony voluntarily given will not warrant immunity. It must be required. See Medlock v. State, 108 Texas Crim. Rep. 274; Henderson v. State, 103 Texas Crim. Rep., 502; Lewis v. State, 103 Texas Crim. Rep., 64. To give this court jurisdiction to pass upon the matter, it will be necessary that the question be brought before the court in some manner other than by affidavit as is attempted in the present instance.
The motion to abate the prosecution is dismissed.
Dismissed.