The record having been perfected, the appeal is reinstated.
The offense is the unlawful manufacture of intoxicating liquor, and the punishment is assessed at confinement in the penitentiary for one year.
Roberts, a deputy sheriff, testified that he, in company with other officers found a still at which he saw the appellant and one Thompson. According to this witness, the appellant was under a hill near a spring and Thompson came up the hill. The witness further testified that the appellant made a statement in which he said that if it was just the same, he would rather have the case put in the Federal Court. He also testified that appellant said concerning the whiskey that it was not very good; that they did not have much luck with the run they had made there; that it was mighty bad stuff.
Appellant's testimony seems to us to be very strong and cogent to the effect that he was in no manner connected with the manufacture of this liquor. It was his theory that he went to the still for the purpose of procuring some whiskey *Page 327 to drink and that he had only been there a very few minutes when he was arrested. He introduced the testimony of his employer and his landlord and these parties negatived the idea that he was out of the city of Waco a sufficient length of time to have justified the inference that he was engaged in the manufacture of the liquor found.
With the record in this condition, we are forced to the conclusion that the learned trial court erred in refusing to give appellant's special charge No. 1, which was as follows:
"You are further instructed that the mere presence of a person at the time and place of the commission of an offense would not make him a principal, and if you believe or have a reasonable doubt that the defendant went to the still but did not aid or encourage by acts or words the making of whiskey, if whiskey was made, you cannot convict him."
This charge was perhaps awkwardly worded but it presented a theory of the case that in our opinion should have been given to the jury. Golden v. State, 18 Texas Crim. App. 639. Jackson v. State, 20 Texas Crim. App. 192. Sanchez v. State,156 S.W. 218. Under the entire record, we are disposed to think that as the court gave the usual charge on principals, the jury perhaps convicted this appellant simply because of his presence at the still at the time the arrest was made.
The judgment of the trial court is reversed and the cause remanded.
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.
ON MOTION FOR REHEARING.