
    LOWE v. STATE.
    (No. 8563.)
    (Court of Criminal Appeals of Texas.-
    Dec. 17, 1924.)
    Criminal law <S=»507(I) — State’s witness, charged by separate indictment with same offense as charged against defendant, lipid accomplice. ,
    State’s witness, under separate, indictment for, same offense as charged against defendant, being unavailable as witness for defendant under Code Cr. Proc. 1911, art. 791, -was an accomplice as a matter of law, though he denied connection with the offense. ,
    Appeal from District Court, Hansford County; W. R. Ewing, Judge. ■
    . Horace Lowe was' convicted of. manufacturing intoxicating liquor, and he appeals.
    Reversed and remanded.
    Tom Garrard, State’s Atty., and Grover 0. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for the manufacture of intoxicating liquor, with the punishment assessed at two years’ confinement in the penitentiary.

The whisky was manufactured on what is called the “Hanson” place, situated some -mile and a half from the house of appellant. Indictments charging the manufacture of liquor at said place were returned against appellant, one Jim Cannedy, and also against Dick Cannedy. Jim Cannedy had also been indicted for the sale of liquor to 'appellant, and. a trial therefor at a former term of court resulted in a hung. jury. Jim Cannedy was the principal witness for the state in the present prosecution. The court instructed the jury that, if they should find Jim Canne-dy to be an accomplice, appellant could not be convicted unless the accomplice’s evidence was corroborated as required by law. The court seems- to have realized that the purported corroborating- evidence was not sufficient, however, for we find a charge instructing the jury that, if they found Jim Cannedy was an accomplice witness, they should acquit appellant. Under the charge of the court as we understand it the only way the jury could have reached a verdict of guilty was to have found that Jim Cannedy was not an accomplice. Notwithstanding the testimony of Can- ' nedy was to the effect that he had no connection with the manufacture of whisky on the Hanson place, although admitting his presence on repeated occasions when he claims ■appellant and-Dick-Cannedy were engaged in manufacture, we are inclined to the opinion from a careful examination of all the evidence in the record that a finding of the jury that Jim Cannedy was not an-accomplice witness ás a matter of fact was a.gainst the great weight of the testimony. However, we find it unnecessary to dispose of the question upon that ground. It occurs to us that Jim Cannedy was an accomplice as a matter ■ of law. While not indicted jointly with appellant and D'ick Cannedy for the manufacture of' whisky, it is clear from the record that the state had indicted him separately for the same offense, and that tie indictment Was pending against him at the time of this trial. This indictment rendered him unavailable to appellant as a witness had the latter sought to use him. Article 791, C. C. P. When called by the state to testify against his' codefendant with the' indictment still pending charging him with the same offense, the state must assume to discharge the bur-deh of corroborating bim, for by its act of indicting him as a principal he'became an' accomplice witness as a matter of law. We think it unnecessary to ■ review the authorities, but only refer to some of them. Barrara v. White, 42 Tex. 260; Saye v. White, 50 Tex. Cr. R. 569, 99 S. W. 551; Oates v. State, 48 Tex. Cr. R. 131, 86 S. W. 769; Chastain v. State, 97 Tex. Cr. R. 182, 260 S. W. 172; Jones v. State, 85 Tex. Cr. R. 538, 214 S. W. 322; Grissman v. State, 93 Tex. Cr. R. 15, 245 S. W. 438.

The judgment is reversed and the cause remanded. 
      
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