
    LUNCEFORD v. STATE.
    (No. 10854.)
    Court of Criminal Appeals of Texas.
    Oct. 12, 1927.
    Rehearing Denied Dec. 14, 1927.
    1. Intoxicating liquors <&wkey;289'(3) — Evidence that another than defendant was at still held to authorize instruction on law of principals.
    In prosecution for manufacturing intoxicating liquor, evidence showing that another than defendant was also at still held sufficient to raise issue that defendant was acting with such other in commission, of offense, and to authorize instruction on law of principals.
    On Motion for Rehearing,
    2. Criminal law <@=»572 — In prosecution for manufacturing liquor, instruction to acquit on reasonable doubt whether defendant had been at still prior to arrest held sufficient charge on alibi.
    Where alibi was defense in prosecution for manufacturing intoxicating liquor, instruction that, if jury had reasonable doubt as to whether defendant had been at still prior to arrest they should acquit, held sufficient charge on such defense.
    3. Intoxicating liquors <&wkey;239(3) — Instruction to convict if defendant, alone or with another, manufactured intoxicating liquor, otherwise, to acquit, held sufficient presentation of converse of issue of principals.
    In, prosecution for manufacturing liquor, charge that, if jury believed beyond reasonable doubt that defendant, .either alone or acting with another, manufactured intoxicating liquor, to find him guilty, and, unless they so found, to acquit held sufficient presentation of converse of issue of principals.
    Commissioners’ Decision.
    Appeal from District Court, Smith County; J. R. Warren, Judge.
    Glennie Lunceford was convicted of manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    Gentry & Gray, of Tyler, for appellant
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   CHRISTIAN, J.

The offense is manufacturing intoxicating liquor; the punishment, confinement in the penitentiary for one year. The facts upon which the prosecution was based are these:

Appellant was arrested by an officer at a point 20 or 25 steps from a stiil. The still had a fire under it, was in operation, and whisky was dripping from the worm. Near the still there were 14 gallons of whisky. The still was located in a concealed place, where the ground was muddy and marshy. Prior to arresting appellant, the ■ officer watched appellant gather an armful of wood, which he placed on his shoulder. Appellant started in the direction of the still, and the officer followed him for 15 or 20 steps. The officer then stopped appellant, and appellant dropped the wood. Whereupon the officer asked appellant what on earth he meant, and appellant replied that he would not have dona it, if he had not been head over heels in debt. There was whisky mash on appellant’s clothing,. and he was wet and muddy. A man by the name of Will Sparks was arrested while running away from the still.

Appellant testified in substance that he was looking for certain parties, and that, hearing some one talking, he called them; that some one answered him from a concealed place, and told him to bring an armful of wood with him; that he thought the parties who spoke to him were boys engaged in barbecuing meat of some kind; that in compliance with their request he picked up some wood and had started in their direction when he was arrested by an officer. Appellant denied that he knew anything about the still, testified that he had never been about it or seen it and knew nothing of the unlawful manufacture of whisky, and had no connection with any such enterprise. He further denied that he made the statement attributed to him by the officer. Several witnesses testified that appellant was in a place other than in the vicinity of the still for several hours previous to a short time before he was arrested.

We find one bill of exception in the record. This bill preserves appellant’s exception to the action of the court in overruling his objections to the charge. As shown by appellant’s bill of exception, his first complaint is that the court erred in embodying in his charge an instruction on the law of principals; it being urged by appellant that the evidence was insufficient to raise an issue authorizing such instruction. We are unable to agree with appellant that the testimony does not raise the issue that appellant and another were acting together in the commission of the offense.

Appellant’s next complaint is that the court erred in failing to charge the converse of the theory of the state that appellant and Sparks were principals. In paragraph 5 of his charge the court instructed the jury in substance that, if they believed beyond a reasonable doubt that appellant, either alone or acting together with another person, namely, Will Sparks, did on or about the time and place charged in the indictment manufacture spirituous liquors capable of producing intoxication, they would find„him guilty and assess the proper punishment, and that unless they so found they would not find him guilty. An inspection of paragraph 6 of the court’s charge discloses that it covers the converse of the state’s theory, and that it is an affirmative presentation to the jury of the defensive theory. It follows that we are unable to sustain appellant’s contention.

Appellant complains of the action of the trial court in failing to instruct the jury on alibi. The court, in substance, instructed the jury that, if they had a reasonable doubt as to whether appellant had been at the still prior to the arrest, they would acquit him. We think this instruction was sufficient to cover the issue raised by appellant that he had never been to the still previous to his arrest.

Finding no error, the judgment is affirmed.

PER OURIAM. 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.

LATTIMORE, J.

In his motion appellant again renews his insistence that the trial court-ought to have given a more extended charge on alibi. We have held in many cases that, where the court instructs the jury that they are to acquit if they have a reasonable doubt of the presence of the accused at the time and place of the commission of the offense, this is a sufficient charge on alibi, when that is a defense. Some authorities are cited in the case of Briscoe v. State, 106 Tex. Cr. R. 402, 292 S. W. 893. As stated in the original opinion, a charge on alibi in this form was given by the trial court. We think it sufficient.

The court charged on principals, .telling the jury that, if they believed from the evidence beyond a reasonable doubt that appellant, either alone or acting with another person, viz., Will 'Sparks, did on or about the time charged manufacture spirituous liquor capable of producing intoxication, to find him guilty, and unless they so found they would find him not guilty. We have been cited to no case holding this not a sufficient presentation of the converse of the issue of principals. It appears to us that this presents said converse as fully as if the court had elaborated the idea more at length.

The motion for rehearing is overruled. 
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