
    VAN ZANDT v. STATE.
    (No. 11412.)
    Court of Criminal Appeals of Texas.
    March 7, 1928.
    Rehearing Denied May 9, 1928.
    1. Intoxicating liquors <&wkey;i|67 — Several parties may act together as principal offenders in offense of possessing still or making whisky.
    Several parties may act together as principal offenders in offense of possessing a still or of making whisky.
    2. Intoxicating liquors <&wkey;J67 — 'That one aiding another in possessing still or making whisky does so for accommodation or pay does not render him guiltless.
    That one aids or assists another in making whisky or possessing a still does so for accommodation or for pay does not render him guiltless.
    3. Intoxicating liquors <&wkey;>!67 — That liquor made or still possessed belonged exclusively to another alleged principal did not affect guilt as principal of defendant.
    That intoxicating liquor made or still possessed belonged exclusively to some one of alleged principals other than defendant did not affect question of principalship or defendant’s guilt as principal.
    On Motion for Rehearing.
    4.Intoxicating liquors <&wkey;l67 — Instruction that, if defendant was only assisting in attempt to manufacture liquor and did not have possession of still, he was not guilty, held properly refused (Pen. Code 1925, arts. 65, 66).
    Instruction that, if defendant was only present and assisting in an attempt to manufacture liquor, and did not have possession of still, he would not be guilty, effect of which was to tell jury that, although defendant was present and assisting in attempt to manufacture liquor, he could not be guilty of possessing still, where ownership thereof was in some one else, held properly refused, since such instruction would have been contrary to law of principals announced in Pen. Code 1925, arts. 65, 66.
    Appeal from District Court, Stephens County ; C. O. Hamlin, Judge.
    Walter B. Van Zandt was convicted of possessing a still, and he appeals.
    Affirmed.
    V. L. Shurtleff, of Breckenridge, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMOR'E, J.

Conviction for possessing a still; punishment, one year in the penitentiary.

The indictment contained five counts, but the court submitted to the jury only the first and third, which charged, respectively, the manufacture of intoxicating liquor, and the possession of a still for the purpose of said manufacture. The verdict of the jury found appellant guilty under the third count.

Officers testified that they saw appellant, his father, and another‘ man put together a still about 1 a. m., and saw them put into same mash and build a fire under it and add wood from time to time. The officers watched the performance about threé hours, and. which time the other two men were lying down apparently asleep and appellant was chunking the fire and attending to things.generally. The officers advanced and put the entire party under arrest. On the trial, appellant took the stand and admitted that he went with his father and the other man to where the still was, helped them put it together, and helped put in the mash, build a fire, etc. He said he knew his father was trying to make whisky, and he was doing all he could to help him. To make whisky save for several excepted purposes is unlawful; to possess a still for the purpose of making it is also unlawful. We perceive no sound reason for doubting that several parties may act together as principal offenders in either offense. That one who aids or assists another in those things which make out guilt under the law does so for accommodation or for pay, would not seem to render him guiltless. That the intoxicating liquor so made or the still so possessed belonged exclusively to some one of the alleged principals other than this appellant would not seem to affect in any wise the question óf princi-palship, or the guilt as principals, of the others. No such distinction exists as to who are and who are not' principals in any of those ways in which persons can be such under the law. Atwood v. State, 102 Tex. Cr. R. 122, 277 S. W. 665; Riojas v. State, 102 Tex. Cr. R. 258, 277 S. W. 640.

The bill complaining that appellant was not served with or furnished a true copy of the indictment is without merit. It is qualified by the statement that he had been served with a copy, and that his only complaint here was that one word in the fourth count in the indictment served upon him was not correctly spelled. This count in the indictment was not submitted. The request that the court give a peremptory instruction in favor of the accused was based upon the mistaken idea as to the law of principals, which is above discussed. We find no facts in the record calling for the instruction requested in the fourth bill' of exceptions.

No error appearing, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J

Although appellant admitted in his testimony that he knew his father was trying to make whisky and that appellant was doing all he could to assist in the enterprise, he excepted to the court’s charge because the jury was not instructed that, if appellant was only present and assisting in an attempt to manufacture liquor and did not have possession of the still, he would not be guilty. He now insists that a charge to that effect should have been given. •We confess that we have not been able to follow appellant’s'reasoning in the matter. The effect of the charge desired would have been to tell the jury that, although appellant was present and assisting in an attempt to manufacture liquor, he could not be guilty of possessing the still, where ownership thereof was in some one else. Such an instruction to our minds would have been contrary to the law of principals as announced in articles 65 and 66 P. O. (1925), which are as follows:

“All persons are principals who are guilty of acting together in the commission of an offense.”
“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, or who, not being actually present, keep watch so as to prevent the interruption of those engag'ed in committing the offense, such persons so aiding, encouraging, or keeping watch are principal offenders.”

We have heretofore announced, in Dawson v. State, 97 Tex. Cr. R. 408, 261 S. W. 1050, that:

“Two or more parties may be co-principals in manufacturing, selling, transporting, or possessing for the purpose -of sale, intoxicating liquor, and as such coprincipals may be either jointly or separately indicted and prosecuted as such.”

We see no reason why the same would not be true in the present case. See, also. Louis v. State, 102 Tex. Cr. R. 440, 278 S. W. 205. If one in possession of a still was preparing to manufacture liquor, and another was keeping watch in order to prevent interruption of such unlawful possession, it seems patent that one so keeping watch would be a principal offender. We see nothing to prevent appellant from being' a principal under the conceded facts.

The motion for rehearing is overruled. 
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