The appellant insists that the statement of facts filed in this case, under the showing made on his motion for rehearing, should be considered by this court. After a careful examination of said motion, the affidavits attached thereto, and the certificate of the judge, we have decided that we should consider the statement of facts herein.
There is only one question which we deem necessary to consider on this motion for rehearing, and that is the failure of the court to charge the jury on the law of accomplices, in connection with the testimony of the state's witness, Herman Looney. This witness testified for the state to the effect that he was down on the creek fishing and saw the appellant, Charlie Wallace and Elzie Wallace making whiskey; and that when he started to leave them, Charlie Wallace said to him, "Hold up there, son; we have got the law on you. I tell you, you chunk that fire." The witness further testified, "Then I just kicked a little chunk up under the fire. I did that because I was afraid not to." Upon cross examination he testified, "I poured a bucket of water into that tub. I kicked up the fire." This testimony related to the fire that was cooking the whiskey and to pouring the water into the tub containing the coil, as we understand it. If the witness assisted voluntarily in making the whiskey, as above stated, he was clearly an accomplice and the court should have so instructed the jury. Wolff v. State, 104 Tex.Crim. Rep., 283 S.W. 803. If the witness assisted in making the whiskey under duress or fear of Charlie Wallace, the court should have *Page 359 instructed the jury that under such circumstances he was not an accomplice. The appellant excepted in a timely manner to the failure of the court to charge on this issue, and we are of the opinion that under the facts stated, the court erred in failing to charge the law as above indicated.
For the error above discussed, we are of the opinion that the appellant's motion for rehearing should be granted, the judgment of affirmance set aside, and the judgment of the trial court reversed and remanded, and it is accordingly so ordered.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.