
    WOLFF v. STATE.
    (No. 10143.)
    (Court of Criminal Appeals of Texas.
    May 5, 1926.)
    Criminal law <&wkey;>780(l) — Witness who watch- ' ed his father and another making whisky, and sometimes assisted, held accomplice (Pen. Code 1925, arts. 65, 66).
    On trial of two persons for violating prohibition law, son of one of them who testified that he watched while whisky was being made, and helped a little, carrying water and things, held an accomplice within Pen. Code 1925, arts. 65 and 66.
    Commissioners’ Decision.
    Appeal from District Court, Fayette County; M. C. Jeffrey, Judge.
    Michael Wolff was convicted of keeping premises and buildings for purpose of storing and manufacturing intoxicating liquors, and he appeals.-
    Reversed and remanded.
    George Willrich, of La Grange, C. E. Nes-rsta, of San Antonio, and W. J. Embrey, of Brenham, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeek, for the State. ■
   BAKER, J.

The appellant was convicted in the district court of Fayette county for unlawfully keeping his premises and buildings for the purpose of storing and-manufacturing intoxicating, liquors, and his punishment assessed at one year in the penitentiary.

The record discloses that the appellant was jointly indicted with Richard Wolff and Albert Duschinsky, and, upon a severance being granted to Richard Wolff, appellant and Duschinsky were jointly tried, the appellant convicted, and Duschinsky acquitted. The record further discloses that Duschinsky had been farming on the premises of the appellant, but that about the time of the alleged offense, or a short time thereafter, they became engaged in a serious and threatening difficulty, which resulted in Duschinsky’s leaving the premises of appellant and going to the premises of a neighbor who-was unfriendly to him, the appellant. The sheriff, upon searching Duschinsky’s house, found therein about 25 gallons of whisky, and also found some barrels, mash, and a still in the pasture belonging to the appellant.

The appellant and Duschinsky were represented by different attorneys upon the trial. Duschinsky’s attorney placed him upon the stand, and he testified in detail as to how the still was obtained, and to his going after the still and bringing it back, in company with his son, Albert Duschinsky, Jr., and to the effect that, while he carried the still, his son probably carried the coil. Duschinsky further testified that the appellant insisted on his making the whisky, and, in effect, assured him that, if it was discovered, he (appellant) would be responsible, and practically to the effect that appellant, by reason of refusing to furnish the necessary supplies for his family, forced him to make the whisky. The appellant defended upon the ground — ■ and so testified and introduced other evidence to the same effect — that he knew nothing of the whisky being made on said premises until it was found by the sheriff, and denied any connection therewith or knowledge thereof. Appellant further testified that he was opposed to whisky being made on his premises.

.'The state placed upon the stand Albert Duschinsky, Jr., who testified in detail con-< cerning the operations of his father and the appellant in making whisky on the Appellant’s place, relating in detail how it was made, and to conversations between appellant and his father regarding same, and to the appellant furnishing the material, and to his (the witness) assistipg in making same, and with reference to the mash and his connection therewith'as follows:

“We put it in a well because we did not want to dig a well, and this one was shown to us. Richard Wolff showed’us the well where we should put it. Michael Wolff knew where the mash was, and knew where we were keeping it. During the time we were cooking it in the barn Mr. Michael Wolff was there, and saw us cooking it. * * * I did not know how to make it as well as my papa, but I knew tolerably well. I did not help my papa to make this stuff very much; usually I just looked on. After we made that stuff, and it was of a brown color, we had it in barrels, and then into the field. * * * Usually when that stuff was cooked, I looked on; mostly I looked on, but I helped a little, carrying water and things. I did carry water.”

The court failed to charge the jury on Albert Duschinsky, Jr., being an accomplice, and the attorneys for the appellant duly excepted and objected to said charge, 'and per-pared a special charge requesting the court to charge the jury that said Duschinsky, Jr., was an accomplice witness, which was by the court refused, and the appellant excepted. This charge was sufficient, as well as said objections to the main charge, to call the court’s attention to this, omission to charge on ’ the law of accomplice. Albert Dusehin-sky, Jr., having testified fully as to his presence, aiding and assisting in the making of the alleged whisky, he is, we think, clearly a principal under articles 65 and 66 of the 1925 Penal Oode (articles 74 and 75 of the old Code), and we think that the trial court was in error in failing to charge the jury, under the facts of this case, that this Witness was an acccomplice. Branch’s Ann. P. 0. § 702, citing Irvin v. State, 1 Tex. App. 303; Davis v. State, 2 Tex. App. 605; Newton v. State, 62 Tex. Cr. 622, 138 S. W. 712, and many other Authorities thereunder. See, also, Gibson v. State (C. C. A. No. 9888) 281 S. W. 567, opinion delivered March 17, 1926, not yet [officially] reported.

For the error above discussed, we are of the opinion that the judgment of the trial' court should be reversed and remanded, 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. 
      <i&wkey;i’or other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     