
    RAMSEY v. STATE.
    (No. 11228.)
    Court of Criminal Appeals of Texas.
    Nov. 9, 1927.
    1. Criminal law &wkey;970(5) — Defendant, not moving to quash indictment, nor demanding election, cannot urge duplicity by motion in arrest.
    Defendant, not moving to quash indictment for possessing mash and still to manufacture intoxicating liquor, nor demanding election between offenses, cannot take advantage of alleged duplicity after verdict by motion in arrest of judgment.
    2. Intoxicating liquors <&wkey;236( 19) — Evidence held to'support conviction of possessing mash and still for manufacturing intoxicating liquor.
    Evidence iheld sufficient to support conviction of possessing mash and a still for the purpose of manufacturing intoxicating liquor.
    3. Intoxicating liquors <&wkey;l67 — Defendant working on still, which he thought would be used to manufacture intoxicating liquor, was principal in offense of possessing still for such purpose (Pen. Code 1925, art. 66).
    Defendant’s testimony that he knew he was working on a still and thought it would be used for manufacturing intoxicating liquor constituted him a principal in offense of possessing mash and still for manufacturing such liquor, under Pen. Code 1925, art. 66, though he was only hired to do work and had no intention of making whisky.
    4. Criminal law <§=>394 — Admission of testimony as to results of searching residence of another than defendant held not error (Pen. Code 1925, art. 691).
    In trial for possessing mash and a still for manufacturing intoxicating liquor, admission of officer’s testimony as to results of search of residence and premises of another than defendant under warrant, issued on affidavit not stating facts, circumstances, or detailed information showing that residence was being used for purpose denounced by Pen. Code 1925, art. 691, ¡held not error; defendant not being interested in such premises.
    
      5. Searches and seizures &wkey;>7(26)—Only wronged or injured party can complain of illegal search.
    Tire right to complain of an. illegal search is a privilege personal to the wronged or injured party, and is not available to any ■ one else. , ■
    Commissioners’ Decision.
    Appeal from District Court, Wilbarger County; Robert Cole, Judge.
    S. H. Ramsey was convicted of possessing mash and a still for the purjjose of manufacturing intoxicating liquor, and be appeals.
    Affirmed.
    Storey, Leah & Storey, of Vernon>, for appellant.
    A. A. Dawson, State’s A tty., of Austin, for the State.
   CHRISTIAN, J.

The offense is possession of mash and a still for the purpose of manufacturing intoxicating liquor; the punishment, confinement in the penitentiary for 1 year.

Appellant was convicted under an indictment charging him with unlawfully possessing mash and a still for the purpose of manufacturing intoxicating liquor. In a motion in arrest of judgment, which was overruled by the trial court, appellant attached the indictment as being duplicitous on the ground that the ppssession of mash is one offense, and that the possession of a still is another offense. No motion to quash the indictment was filed by appellant. If the indictment was duplicitous, which is not conceded, appellant made no motion to quash and failed to demand an election by the prosecution. Having failed to avail himself of one of the privileges, he cannot tahe advantage of the alleged duplicity of the indictment after verdict. Melley v. State, 98 Tex. Cr. R. 522, 248 S. W. 367; Tuckness v. State, 101 Tex. Cr. R. 483, 276 S. W. 277.

Appellant contends that the evidence is insufficient to support the verdict of the jury and the judgment rendered thereon. We, are unable to agree with him. The state’s testimony, in substance, shows that officers went to the premises and residence of S. A. Lahon; that appellant was sitting in some brush soldering some parts of a still; that his companion, S. A. Lahon, was engaged in digging a pit; that three barrels of mash were found on the premises, although appellant was not near the mash; that fruit jars were found in the house of Lahon which had whisky in them. Appellant defended on the ground that he had been employed by S. A. Lahon as a tinner, and that Lahon paid him $3 a day and board for his work; that he knew that he was working on a still, and that he thought that it was to be used for the purpose of manufacturing liquor, but that he had no interest in the still and was merely working for wages. He testified further that he was to do the soldering and was to ask no questions.

Appellant complains of the failure of the court to submit a charge affirmatively covering his defensive theory. In connection with his objection to the court’s charge, he submitted a requested instruction, which, in substance, would have advised the jury that if they had a reasonable doubt that he (appellant) was engaged as a tinner or mechanic in working on the still or constructing said still or parts thereof, but that he had no interest in the same but was only hired to do the work and had no intention of making whisky alone or with some one else, that he would not be guilty of the offense with which he was charged. Conceding that appellant’s theory is supported by his testimony, the same would not constitute a defense to the charge contained in the indictment. Appellant stated that he knew that he was working on a still and thought that it would be used for the purpose of manufacturing liquor. This testimony constituted appellant a principal. Article 66, P. C., provides:

“When an offense is actually committed by one or more persons, but others are present,- and knowing the unlawful intent, aid by acts or encourage by words or gestures, those actually engaged in the commission of the unlawful act, * * * such persons so aiding” or “encouraging * * * are principal offenders.”

The officers making the search secured a .search warrant authorizing them to search the residence of S. A. Lahon. The affidavit for the search warrant was made on information and belief, and there were given therein no facts,' circumstances, or detailed information tending to show that said residence was being used for a purpose denounced by article 691, P. C. Appellant objected to the testimony of the officers touching the results of the search of the residence and premises of S. A. Lahon. The court did not err in admitting the testimony. Appellant was not in any manner interested in the premises. The right to complain, because of an illegal search is a privilege personal to the wronged or injured party and is not available to anyone else. Cornelius on Search and Seizure, § 12, p. 62. See, also, McFarlan v. State, 106 Tex. Cr. R. 384, 292 S. W. 885; Dozier v. State, 105 Tex. Cr. R. 413, 289 S. W. 45.

We have carefully considered the remainder of appellant’s contentions and find no prejudicial error.

The judgment 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. 
      <&wkey;For other cases see same topic and KBY-NUMBER. in all Key-Numbered Digests and Indexes
     
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