
    JAGGERS v. STATE.
    (No. 9977.)
    (Court of Criminal Appeals of Texas.
    March 31, 1926.
    Rehearing Denied May 12, 1926.)
    1. Criminal law <i&wkey;8l4(3), 829(7) — In prosecution for transporting liquor, special charge to acquit, unless defendant had some guilty connection with such transportation within county, held properly refused, where evidence did not raise issue of venue, and general charge covered issue of alibi.
    In prosecution for transporting liquor, special charge to acquit, unless defendant had some guilty connection with such transportation within county, "held properly refused, where evidence did not raise issue of venue, and general charge to acquit, if there was reasonable doubt of defendant’s presence at time and place offense was alleged to have been committed, sufficiently covered issue of alibi.
    2. Criminal law &wkey;780(l) — In prosecution for transporting liquor, refusal to instruct that one who was with defendant was accomplice held proper (Pen. Code 1925, art. 670).
    In prosecution for transporting liquor, refusal to instruct that one who was with defendant was accomplice held proper, in view of Pen. Code 1925, art. 670, providing that purchaser, transporter, or possessor of intoxicating liquor shall not be held to be accomplice.
    3. Intoxicating liquors. <§^226 — Where evidence showed that defendant, in prosecution for transporting liquor, left wrecked automobile bareheaded, proof that cap was found in car held admissible.
    Where evidence, in prosecution for transporting liquor, showed that, after collision of defendant’s automobile with another, defendant, who had been wearing cap, left bareheaded, proof that cap was found in car held admissible.
    4. Criminal law <&wkey;4!2(3)- — Bill complaining.of court’s action in prosecution for transporting liquor in allowing one who was with accused to testify that accused told him there were 42 gallons of whisky in car held to show no error.
    Bill complaining of court’s action in prosecution for transporting liquor in allowing one who was with accused to testify that accused told him there were 42 gallons of whisky in ear held to show no error.
    On Motion for Rehearing.
    5. Intoxicating liquors &wkey;3239(i) — Evidence that accused and another were joint transporters of liquor held to justify instruction on law of principals (Pen. Code 1925, art. 65).
    In prosecution for transporting liquor, evidence that accused and another were joint transporters held to justify instruction on law of principals, in view of Pen. Code 1925, art. 65.
    6. Criminal law &wkey;>770(2).'
    It is incumbent on court to submit state’s theory arising from evidence as well as that of accused.
    Commissioners’ Decision.
    Appeal from District Court, Knox County; ,’J. H. Milam, Judge.
    Bill Jaggers was convicted of unlawfully transporting intoxicating liquor, and lie appeals.
    Affirmed.
    John Davenport, of Wichita Falls, 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 Knox county for unlawfully transporting intoxicating liquor, and his punishment assessed at five years in the penitentiary. <

It was the contention of the state in this case that the appellant and one Donnegan were together, and guilty of unlawfully transporting about 40 gallons of whisky in an automobile, in Knox county, at the time of having a collision with the occupants of another car. The appellant contended, and introduced evidence to the effect, that he was not in Knox county at the time in question; knew nothing of said collision; and had no interest in said whisky.

The appellant has not favored us with a brief, but the record discloses five bills of exceptions. Bill of exception No. 1 complains of the refusal of the court to give the jury appellant’s special charge to. the .effect that unless they believed that the defendant had some guilty connection with the transportation of the intoxicating liquor in Knox county to acquit him. We are of the opinion that there is no merit in this contention, as the court in his general charge instructed the jury that if they had a reasonable doubt as to the presence of the defendant at the time and place where the offense was alleged to have been committed to acquit him. The indictment charges the offense in Knox county, and we believe the court’s charge sufficiently covered the issue presented in said special charge, and there was no error in refusing to give same.

Bill of exception 2 complains of the action of the court in refusing to charge the jury that Donnegan was an accomplice, and that they could not convict the defendant upon his testimony alone. Article 670 of the new Penal Code, which was in force at the time of this trial, specifically states that the purchaser, transporter, or possessor of intoxicating liquors shall not be held in law or fact to he accomplices, and no other reason for asserting that said witness -was an accomplice is set up in the bill. The testimony of the state, if believed, showed clearly that the witness Donnegan and the appellant were transporting whisky at the time and place alleged in the indictment. Under said article, supra, we are of the opinion that the court committed no error in refusing to submit tbis charge.

Bill 3 complains of the action of the court in defining in Ms general charge who are principals. This bill, as presented, shows no error in this particular.

Bill 4 complains of the action of the court in permitting the district attorney to prove by the sheriff that a cap was found in the car alleged to have been occupied by the appellant and the witness Donnegan at the time of the collision, because appellant contends it was not shown that he had any connection with same. The record discloses that the state’s witnesses .testified that, after the collision, the appellant walked off from the car'bareheaded. We fail to observe any erfor in admitting this testimony, and are of the opinion that same was admissible as a circumstance connecting the defendant with the alleged offense,

Bill 5 complains of the action of the court in permitting the witness Donnegan to testify that appellant told him there were 42. gallons of whisky in the car in question. TMs bill, as presented, shows no error in the action of the court in admitting this testimony. After a careful examination of the entire record, we are of the opinion that the judgment of the trial court should be in all things affirmed, and it is accordingly so or- ' dered.

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.

MORROW, P. J., absent.

On Motion for Rehearing.

MORROW, P. J.

The court instructed the jury on the law of principals. Objection was urged to the submission of that issue upon the ground that it was not raised by the evidence.

The charge on alibi was in these words:

“If you should entertain a reasonable doubt as to the presence of the defendant at the time and place where the offense is alleged to have been committed, you will acquit the defendant.”

Objection to this charge was also urged.

The issue of principals was, we think, clearly raised by the testimony of Donnegan, who was definite in his statement that the appellant was present and was the owner of the whisky. Donnegan’s testimony leads us to the conclusion that he knew that the whis-ky was* in the car. According to his testimony, he and the appellant were joint transporters. If Donnegan’s testimony was believed, the two were principals under article 65, Pen. Code 1925, which declares:

“All persons are principals who are guilty of acting together in the commission of an offense.” ,

The only complaint of the charge on principals is that the evidence fails to raise it. However, we fail to perceive any tangible objection to the form, used in instructing the jury upon that subject. The circumstances were clearly such, we think, as warranted evidence of the identity of the cap, which was found in the car after the wreck. Don-negan testified that on the day of the offense he was in Knox county in a Dodge car with the appellant. The witness said he had whis-ky in the car; that appellant said there were 42 gallons; that they were driving down the road, and another car drove into them. Both cars were wrecked, and some of the whisky ran out. A number of people, including officers, appeared. Appellant was wearing a cap at the time. Donnegan knew that the appellant left his cap there, as he found it later. We tMnk the objection to the testimony of Donnegan that the appellant told him there were 42 gallons of whisky in the car is untenable.

According to the appellant, he ,was not present at the time of the transaction. It was incumbent upon the court to submit the state’s theory arising from the evidence as well as that of the appellant. The appellant’s theory was alibi. The charge upon that subject, which is quoted above, has been approved and is deemed sufficient. See Harris v. State, 31 Tex. Cr. R. 416, 20 S. W. 916; Stevens v. State, 42 Tex. Cr. R. 175, 59 S. W. 545; Boothe v. State, 4 Tex. App. 213; Chandler v. State, 60 Tex. Cr. R. 339, 131 S. W. 598; Branch’s Ann. Tex. P. C. § 52.

Appellant complains of the refusal of an instruction that, unless the jury believed that appellant had some guilty connection with the transportation of the whisky in Knox county, they should acquit Mm. We fail to find any cogent evidence raising the issue of venue. The only defensive theory which has been perceived is that of alibi, which was submitted to the jury.

The motion for rehearing is overruled. 
      É=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     