
    ADAMS v. STATE.
    (No. 10202.)
    (Court of Criminal Appeals of Texas.
    Oct. 20, 1926.)
    I. Indictment and information <§=>110(31).
    It was not error to overrule motion to quash indictment for possession of still -^nd equipment, which followed statute.
    2. Criminal law <§=>452(3) — Witness, who .testified as to peculiarities of track of certain horse, held properly permitted to testify that tracks he examined week later were same.
    In liquor prosecution, witness, who testified that he was familiar with track of certain horse and described peculiarities thereof, was properly permitted to testify that tracks which he trailed going to still site were same tracks that he saw this horse make week later, since this was in effect his opinion.
    3. Criminal law <©=>507(1) — Witness, who aided in transportation of mash, held accomplice of driver of wagon, and conviction based on their testimony was erroneous (Pen. Code 1925, arts. 65-67, 670).
    Witness, who held tub over top of mash barrel while en route, was accomplice of driver of wagon, regardless of Pen. Code 1925, art. 670, and conviction based on testimony of these witnesses was erroneous, in view of articles 65-67, since one accomplice could not corroborate another.
    4. Intoxicating liquors <®=>239(l).
    Charge, in prosecution for possessing still, using word “property” in defining possession with reference to control and management of premises, should be limited to still and equipment.
    Commissioners’ Decision.
    Appeal from District Court, Rains County; J. M. Melson, Judge.
    Henry Adams was convicted for unlawfully possessing still, mash, material, and equipment for manufacturing intoxicating liquor, 'and be appeals.
    Reversed and remanded.
    McMahan, Dohoney & Dial, of Greenville, O. H.'Bodes, of Emory, and Jones & Jones, of Mineóla, 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 Rains county for unlawfully possessing a still, mash, material, and equipment for manufacturing intoxicating liquor, and his punishment assessed at 4 years in the penitentiary.

The indictment in this case contains two counts. In the first count the appellant is charged with possessing a still and equipment for manufacturing intoxicating liquor, and in the second count he is charged with the unlawful manufacture of intoxicating liquor. It was the contention of the state that the appellant, John Sisk, Everett Lofton, Miles Malone, and Bob Smart had the equipment and were manufacturing intoxicating liquors' on a place under the control of the appellant, Henry Adams, at the time alleged in the indictment. The appellant defended upon the ground of an alibi, and that he was not interested in said equipment and the manufacture of said intoxicating liquors, and knew nothing of the transaction alleged in the indictment.

We find 35 bills of exception in the record, but we deem it unnecessary to discuss the majority of said bills at this time, for the reason that the matters complained of therein will not likely arise upon another trial. AVe will therefore content ourselves with discussing such bills and matters complained of as we think will likely be presented for the trial court to pass upon in the course of another trial.

In bill of excexotion No. 1 complaint is made to the refusal of the court to quash the indictment herein. The appellant having been convicted for possession of the still and equipment, as set out in the first count of the indictment, the second count passes out of the case. The charging part of the indictment in the first count is as follows:

“ * * * Did then and there unlawfully possess certain still, mash, material, equipment, and supplies for the manufacture of spirituous, vinous, and malt liquors capable of producing intoxication.”

This count in the indictment follows the statute, and there was no error in the action of the court in overruling the motion to quash.

In bill No. 6 complaint is made to the action of the court in permitting the state’s witness Osborn to testify that he was familiar with the track of a certain horse belonging to John Sisk, which, the state contended, was hitched to a wagon and used in carrying the material and equipment to the place where the alleged whisky was made; that about a week thereafter he examined the tracks of said horse again, and, after describing the peculiarities thereof, was then permitted to testify, over appellant’s objection, that the tracks were made by the same horse. AVe think it was not error for the court to permit this witness to testify that the tracks which the witness trailed in going to the place of the alleged still site were the same tracks that he saw this horse make a week later. This was, in effect, the witness giving his opinion that the tracks were the same. Mueller v. State, 85 Tex. Cr. R. 346, 215 S. W. 93.

Counsel for appellant strenuously insists that the court erred in refusing to charge the jury that the witnesses Smart and Malone were accomplices, and that the appellant could not be convicted upon the uncorroborated testimony of said witnesses, and that said witnesses could not corroborate each other. Timely objections were raised to the court’s general charge for his failure to charge as above indicated, and special charges were duly presented, all of which were refused by the court and proper bills of exception reserved thereto. The record discloses that both of said witnesses Smart and Malone were indicted for the same offense. The state introduced said witnesses, and the witness Smart testified that the witness Malone drove a wagon to a certain house belongr ing' to John Sisk, and there a barrel of mash was placed in said wagon and a zinc tub placed over the top of same; that Malone drove the wagon, with the mash therein, to the place where the whisky was alleged to have been made; and that he (Smart) held the tub over the top of the barrel while en route in order to prevent the mash from spilling out. This witness also testified as to the appellant, Sisk, and Lofton preparing and fixing the equipment with which to manufacture the whisky in question. He further testified to his filling up the “worm-barrel” with water and to his going up in the woods and keeping watch while the others were cooking off the whisky, and as to the witness Malone, together with Lofton, going after the still in the wagon and bringing it back to the scene of the alleged illegal operations. The witness Malone testified practically to the same effect as Smart, and, in addition thereto, testified to his going from the alleged still back to the house of John Sisk and getting six fruit jars and carrying them to the still- for the purpose of filling same with whisky. AVe think this testimony unquestionably made the witnesses Smart and Malone accomplices and that the court erred in refusing to so charge the jury, and in refusing to charge the jury that one accomplice could not corroborate another. The record discloses that the court was under the impression that article 670 of the Penal Code exempted said witnesses from the law of accomplices ; said article being to the effect that, upon a trial for violation of the liquor laws, “the purchaser, transporter, or possessor *. * * herein shall not be held in law or in fact to be an accomplice, when a witness in any such trial.” This article clearly does not apply to the facts developed in this case and said witnesses came clearly within the law of principals under articles 65, 66, and 67 of the Penal Code, and, when used as witnesses, fell squarely under the law of accomplices. The1 attorneys for the state for this court have confessed error on this point; and we think rightly so. Simms v. State, 98 Tex. Cr. R. 352, 265 S. W. 897; Cate v. State, 100 Tex. Cr. R. 611, 272 S. W. 210; Pippen v. State, 102 Tex. Cr. R. 381, 278 S. W. 205; Dean v. State, 102 Tex. Cr. R. 646, 279 S. W. 461; Campbell v. State, 103 Tex. Cr. R. 548, 281 S. W. 200, Id., 103 Tex. Cr. R. 97, 280 S. W. 778; Wolff v. State (Tex. Cr. App.) 283 S. W. 803.

Complaint is also urged to the court’s charge, in that it does not charge the jury that if the appellant was actually present at the alleged still, but not aiding in the operations, to acquit him. AVe are of the opinion that the facts of this case do not raise this issue.

There is also criticism of the third para graph of tlie court’s charge, wherein the court charged the jury on the definition of possession as follows:

“By the word ‘possession,’ as used in this charge, is meant that the person alleged to have been in possession shall have had actual care, control, and management of the property at the time.”

Appellant contends that the word “property” used in said charge is misleading, in that the testimony shows that the appellant was in charge of the pasture where the whisky was alleged to have been made, and the jury was probably misled by reason of the use of the said word “property” instead of limiting the charge to the still and equipment in question. In view of another trial of this case, we think the court should frame this portion of the charge so as to avoid the above criticism.

For the errors 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 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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