
    WALL v. STATE.
    (No. 10654.)
    (Court of Criminal Appeals of Texas.
    Feb. 23, 1927.
    Rehearing Denied April 6, 1927.)
    1. Criminal law <&wkey;4 120(8) — Proving defendant in liquor case was in company of woman coprincipal when arrested held not shown to be error.
    In liquor case, held not error to permit state to prove that woman coprincipal was with defendant at his arrest, where record did not show this evidence was prejudicial to him.
    2. Criminal law <8=»359 — Refusing to permit defendant in liquor case to prove warrant for coprincipal indicted for same offense held not error.
    Refusing to permit defendant in liquor case to prove by state’s witness that he had warrant for arrest of coprincipal under indictment for same transaction held not error; such fact not tending to prove another guilty of offense charged.
    'On Motion for Rehearing.
    3. Intoxicating liquors <&wkey;238(2) — Whether defendant in liquor case was innocent bystander at still held for jury.
    Defense in liquor case that accused was innocent bystander in operation of still presented issue of fact for jury.
    Commissioners’ Decision.
    Appeal from District Court, San Augustine County; Y. H. Stark, Judge.
    Frank Wall was convicted of unlawfully manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    S. M. Adams and R. A. McAlister, both of Nacogdoches, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State..
   BETHEA, J.

The appellant was convicted of the offense of unlawfully manufacturing intoxicating liquor, and his punishment assessed at confinement in the penitentiary for one year and six months.

The state proved by two eyewitnesses, H. J. Wilkerson, the sheriff, and John Hilton, a deputy sheriff, that they saw the appellant, together with Ben Wise and Mrs. McBroom, in the woods making whisky. They saw the still in operation, describing it as being a large oil tank with a copper coil; saw the fire under the tank. The sheriff stated that when he walked up whisky was being made; that it was intoxicating liquor; that he stopped and watched them about 15 or. 20 minutes; that he saw the appellant stirring a barrel of cut-up apples.

Appellant defended on the ground that he was a bystander, stating that the first he knew a still was in operation at that plafie was about noon that day; that his boys informed him of the location of the still, and he and Mrs. McBroom went down there; that he had no interest in the still, nor in the manufacturing of the liquor, nor in the equipment with which the whisky was being made.

Bill of exception No. 1 complains of the state being permitted to prove that Mrs. McBroom was with him when he was arrested in Motley county; the objection being that it was irrelevant and prejudicial. No facts are set out in the bill, from which it can be determined that it was prejudicial to appellant’s rights to prove that he was in company with Mrs. McBroom when he was arrested. Nothing in the bill in any way showed that that fact could militate against him. The court qualifies the bill by showing that Mrs. McBroom and Ben Wise were principal offenders with the appellant in the manufacture of the whisky for which the appellant was being tried. The bill, in this shape, presents no error.

Bill of exception No. 4 complains of the action of the trial judge in not permitting appellant to prove by one of the state’s witnesses, who was an officer, that such witness had a warrant for the arrest of Ben Wise, and that Ben Wise had been indicted for the same transaction; appellant’s contention being that this would tend to show that another and different person was guilty of the offense for which he was being tried. The fact that Ben Wise was indicted as a coprincipal with appellant in the manufacture of liquor could not be treated as a circumstance tending to establish the fact that another and different person was guilty of the offense charged. This bill presents no error.

What has been said of bill No. 1 is equally applicable to bill of exception No. 6, the bills being almost identical.

The facts being amply sufficient to sustain the verdict of the jury, and there being no errors in the record, the judgment of the trial court is affirmed.

PER CURIAM.

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.

MORROW, P. J.

According to the testimony of the sheriff, he saw a still in operation. Mrs. McBroom, Ben Wise, and the appellant wer.e present. All of them were taking part in the operations. They were making whisky. The sheriff arrested them upon the spot, charged them with the offense, and placed them under bond. Appellant was siibsequently rearrested in Motley county, Tex. At the time of his rearrest, he was in company with Mrs. McBroom.

The appellant’s sole defense was that he was an innocent bystander, had no interest in the still, and took no part-in the unlawful act. This presented an issue of fact which, in our judgment, was properly submitted to the jury. The matters of procedure were .properly disposed of in the original opinion.

The motion is overruled. 
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