
    BARNHART v. STATE.
    (No. 10091.)
    (Court of Criminal Appeals of Texas.
    May 19, 1926.
    Rehearing Granted Nov. 24, 1926.)
    Criminal law <§=>780(2) — 'Where state’s witness claimed to have assisted in manufacturing liquor under duress, failure to charge as to issue of accomplice held error.
    Where witness testified to have assisted in manufacture of intoxicating liquor under duress, failure to charge that witness was accomplice if he acted voluntarily, and not accomplice if he acted under duresg, held error -when duly excepted to.
    Commissioners’ Decision.
    Appeal from District Court, Nacogdoches County; C. A. Hodges, Judge.
    John Barnhart was convicted of manufacturing intoxicating liquor, and he appeals.
    Reversed and remanded.
    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.
   BAKER, J.

The appellant was convicted in the district court of Nacogdoches county for the offense of unlawfully manufacturing intoxicating liquor, and his punishment assessed at one year in the penitentiary.

The record discloses that the district court convened on the 7th day of September, 1925, and adjourned October 24, 1925; the appellant was tried and convicted on the 26th day of September, 1925; and his motion for new trial was overruled on the 29th day of Sepr tember, 1925, at which time notice of appeal was given and an order entered granting him 90 days from the adjournment of said term of court within which to file his bills of exception and statement of facts. The record further discloses that the appellant’s statement of facts was filed 107 days, and the bills of exception were filed 114 days, after said notice of appeal was given. The state’s attorneys with this court object to our consideration of the statement of facts and bills of exception because same were filed more than 90 days after said notice of appeal was given. Article 760, 1925 O. O. P., specifically states that bills of exception and statements of fact must be filed within 90. days from the date of the notice of appeal. This court, in Triggs v. State, 289 S. W. 391, No. 10082, opinion rendered April 28, 1926, and Bailey v. State, 104 Tex. Cr. R. 150, 282 S. W. 804, No. 10078, opinion rendered April 21, 1926, held, in construing said article, supra, that statements of fact and bills of exception, filed more than 90 days after notice of appeal was given, were too late to be considered by this court. It necessarily follows that the contention of said attorneys for the state will have to be sustained.

With the bills of exception and statement of facts eliminated and the other proceedings in the trial appearing regular, we are of the opinion that the judgment of the trial court should be in all things affirmed, and it is accordingly so ordered.

PER CURIAM. The foregoing opinion by the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.

On Rehearing.

BAKER, J.

The appellant insists that the statement of facts filed in this ease, under the showing made on his motion for rehearing, should be considered by this court. After a careful examination of said motion, the affidavits attached thereto, and the certificate of the judge, we have decided that we should consider fhe statement of facts herein.

There is only one question which we deem necessary to consider on this motion for rehearing, and that is the failure of the court to charge the jury on the law of accomplices in connection with the testimony of the state’s witness Herman Looney. This witness testified for the state to the effect that he was down on the creek fishing and saw the appellant, Charlie Wallace, and Elzie Wallace making whisky, and that when he started to leave them, Charlie Wallace said to him:

■“Hold up there, son; we have got the law on you. I tell you, you chunk that fire.”
The witness further testified:
“Then I just kicked a little chunk up under the fire. I did that because I was afraid not to.”
Upon cross-examination, he testified:
“I poured a bucket of water into that tub. I kicked up the fire.”

This testimony related to the fire that was cooking the whisky and to pouring water into the tub containing the coil, as we understand it. If the witness assisted voluntarily in making the whisky, as above stated, he was cléarly an accomplice, and the court should have so instructed the jury. Wolff v. State, 104 Tex. Cr. R. 277, 283 S. W. 803. If the witness assisted in making the whisky under .duress or fear of Charlie Wallace, the court should have instructed the jury that, under such circumstances, he was not an accomplice. The appellant excepted in a timely manner to the failure of the court to charge on this issue, and we are of the opinion that, under the facts stated, the court erred in failing to charge the law as above indicated.

Eor the error above discussed, we are of the opinion that the appellant’s motion for rehearing should be granted, the judgment of affirmance set aside, and the judgment of the trial court reversed and remanded, and it is accordingly so ordered.

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. 
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