
    SPERO et al. v. STATE.
    (No. 11377.)
    Court of Criminal Appeals of Texas.
    March 21, 1928.
    Rehearing Denied April 18, 1928.
    1. Intoxicating liquors <§=>l69 — Persons possessing mash gnd materials for manufacturing intoxicating liquor, whether as employees or on their own behalf, are “principal offenders” (Vernon’s Ann. Pen. Code 1925, arts. 65-69).
    Persons possessing mash and materials for manufacture of intoxicating liquor, whether as employees of another or entirely on their own behalf, are principal offenders within Vernon’s Ann. Pen. Code 1925, arts. 65-69.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Principal.]
    2. Criminal law <§=>273, 986(2) — Plea of guilty admits liability, and introduction of evidence thereafter is solely to enable jury to fix penalty.
    Plea of guilty admits liability of defendant making it, and introduction of evidence thereafter is solely for purpose of enabling jury to fix penalty.
    On Motion for Rehearing.
    3. Criminal law <§=>814(10))— Failure to submit issue of defendant’s insanity, of which there was no proof, was not error.
    ' Where there was no proof of defendant’s insanity, the trial court did not err in not submitting such issue to the jury.
    Appeal from Criminal District Court, Harris County; Whit Boyd, Judge.
    Vincent Spero was convicted, and Lewis Sicola pleaded guilty, of possessing mash and materials for the manufacture of intoxicating liquor, and from the judgment fixing the punishment they appeal.
    Affirmed.
    
      Winfree & Weslow, of Houston, for appellants.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The appellants were charged jointly with the possession of mash and materials for the manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of three years.

The appellant Lewis Sicola entered a plea of guilty, while Vincent Spero entered a plea of not guilty.

According to the state’s testimony, the appellants were found living together in a small house near which there was a newly-built barn. Acting under a search warrant, some officers searched the barn and found therein no horses or stock of that nature, but 100 sacks of sugar, 142 fifty-gallon barrels of mash, a 150-gallon still, a 10-burner still base, hogshead, and other articles which the proof showed were used for the purpose of making intoxicating liquor. Each of the appellants testified that he was merely a hired laborer ; that he did not own the property described, and had engaged in the work but a few days. The confession of each of the appellants was introduced, from which it appears that they were each employed by a man named “John,” one to stir the mash and help operate the still, the other to put water and sugar in the mixture. One was to receive $25 per week; the other $18. In the confession it was stated that no whisky had been made up to the time of their arrest. Each of the appellants asked for a suspended sentence. A further statement of the testimony is deemed unnecessary.

There are some bills of exceptions, but they present no matter requiring discussion or authorizing a reversal of the judgment.

With reference to each of the appellants, the proposition is advanced that they were not principal offenders; that they were simply employees of a person described as “John”; that this was an exculpatory fact which appeared from their confessions which were introduced by the state and not disproved. As we view the matter, the contention is untenable. Whether they were employees of “John” or acting upon their own behalf and entirely independent of him would not be controlling. They were, nevertheless principal offenders within the meaning of the law. See Chapter 1, tit. 3, P. C. 1925, Vernon’s Ann. P. C. vol. 1, p. 55; also, Rodriguez v. State, 100 Tex. Cr. R. 11, 271 S. W. 380; Ramsey v. State (Tex. Cr. App.) 299 S. W. 411; Van Zandt v. State (No. 11412) 5 S. W. (2d) 771, not yet [officially] reported.

We will add that so far as the appellant Sicola is affected, his plea of guilty admitted his liability, and the introduction of evidence was solely for the purpose of enabling the jury to fix the penalty.

The judgment is affirmed.

On Motion for Rehearing.

. LATTIMORE, J.

Appellants move for ⅛ rehearing upon the proposition that error was committed by the trial court in not submitting to the jury the question of the sanity of appellants. They base their contention upon Harris v. State, 76 Tex. Cr. R. 126, 172 S. W. 975. Appellants misapprehend the effect of the holding in that case. In that case upon a plea of guilty much evidence was introduced strongly suggesting the insanity of the accused, and this court held that in such case the court should have submitted the issue to the jury and should have instructed them in regard to the burden of proof. We have declined to follow this case in certain regards. Taylor v. State, 88 Tex. Cr. R. 470, 227 S. W. 679. In the instant case there was no proof of insanity, and the court did not err in not submitting the issue to the jury.

The motion for rehearing is overruled. 
      <§=Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     