
    HOWARD v. STATE.
    (No. 6345.)
    (Court of Criminal Appeals of Texas.
    June 15, 1921.
    Rehearing Denied Oct. 12, 1921.)
    1. Criminal law @=>507(1) — Girl living in house where liquor was manufactured, who was present at time of its manufacture, and tasted it, not an “accomplice.”
    In prosecution for manufacturing intoxicating liquor, a young girl who lived with defendant’s mother in the house in which the liquor was alleged to have been manufactured, who had been present at the time the liquor was made, and had tasted it, was not by reason thereof an accomplice within the rule as to the corroboration of an accomplice’s testimony.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Accomplice.]
    2. Criminal law @=3507(1) — That witness was present at time of offense does not constitute witness an “accomplice.”
    The mere fact that a witness had been present at the time of the commission of an pífense does not constitute the witness an accomplice within the rule as to corroboration of an accomplice’s testimony.
    3. Criminal law @=3369(6) — Testimony as to purchase from one accused of manufacturing liquor admissible.
    In prosecution for manufacturing intoxicating liquor, testimony that witness bought certain quantities of liquor from the defendant held admissible, as corroborative of the fact of such manufacture, and as illustrative of fact that manufacture was not for one of the excepted purposes.
    4. Criminal law @=31045, 1056(2) — Error in oharge not fundamentally erroneous not reversible in absence of exception or refusal of requested charge.
    Unless tbe charge is fundamentally erroneous, either in its affirmative statement of tbe law, or by reason of failure to state the law, an error therein will not be held reversible unless tbe charge is excepted to at the time it is given, or a charge correctly presenting the matter is refused, under Vernon’s Ann. Code Cr. Proe. 1916, art. 735.
    5. Criminal law @=>1056(1) — Failure to submit issue as to corroboration of accomplice not reversible error in absence of exception.
    When there is no question but that the record presents ample corroboration of the accomplice’s testimony, or when it does not appear that the conviction rests upon the uncorroborated testimony of accomplice, failure to submit issue as to sufficiency of evidence to corroborate accomplice is not reversible error in tbe absence of an exception.
    6. Intoxicating liquors @=3236(19) — Evidence held to sustain conviction of manufacturing.
    In a .prosecution for unlawfully manufacturing intoxicating liquor, evidence held to sustain conviction.
    Appeal from! District Court, Kaufman County; Joel R. Bond, Judge.
    Gene Howard was convicted of unlawfully manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    Cooley & Crisp, of Kaufman, for appellant.
    H. R. Young, Co. Atty., of Kaufman, and R. H. Hamilton, Asst. Atty. Gen., for the State.
   DATTIMORE, J.

Appellant was convicted in the district court of Kaufman county of the offense of manufacturing intoxicating liquor, not for medicinal, scientific, mechanical, or sacramental purposes, and his punishment fixed at confinement in the penitentiary for a period of five years. The record is before us without any exception taken to the court’s charge, and without any request for special instructions, and without a bill of exceptions to the introduction or rejection of any evidence. In his motion for new triál appellant complains that he was convicted on the uncorroborated testimony of accomplices; also that the trial court failed to tell the jury that certain witnesses were accomplices, and did not submit to the jury the issue as to whether such witnesses were accomplices, and did not submit the law of accomplice testimony; that appellant had no opportunity to procure counsel; and that the evidence does not support the conviction.

We do not think this record discloses a case resting on the uncorroborated testimony of an accomplice or accomplices. The main state witness was a young girl who lived in the house with appellant’s mother, in which house the alleged manufacturing of liquor took place. This girl testified fully to appellant’s manufacture of such liquor on more than one occasion. The only ground upon which any claim is put forward by appellant that she was an accomplice rests on her statement that she tasted said, liquor, and on some occasions drank a little of same, and that she was present at the time the liquor was made. The mere presence of a witness at the time of the commission of an offense does not call for an instruction on the law of accomplice testimony, or constitute such witness an accomplice. Smith v. State, 28 Tex. App. 309, 12 S. W. 1104. In our opinion, the fact that said witness stated that she had tasted the liquor in question, and drank a portion thereof, would not make her an accomplice. The state introduced evidence of officers to the finding in the house of appellant’s mother of the apparatus identified and described by the girl as being that’ with which the-liquor was manufactured. As far as we may determine from the evidence and the testimony of the witnesses, said apparatus appeared to be amply sufficient for the purpose for which it was apparently used. Said apparatus was introduced in evidence before the jury.

In the record appears the testimony of one Jerry Williams that on different occasions, about the time appellant is charged to have manufactured said liquor, said witness had bought certain quantities of same from appellant. The fact that one purchases intoxicating liquor from one accused of the manufacture thereof might be admissible as corroborative of the fact of such manufacture, and also as illustrative of the fact that such manufacture was not for one of the excepted purposes. The fact of purchase, however, would be but a circumstance in a case wherein the charge was manufacturing.

It appears to be the law of this state since 1913 that, unless the charge of the court be fundamentally erroneous, either in its affirmative statement of the law, or by reason of its failure to state the law, an error therein will not be held reversible unless there be exception taken to such charge at the time it is given, or a charge correctly presenting the matter be refused. Article 735, Vernon’s C. C. P.; Childs v. State, 81 Tex. Cr. R. 21, 193 S. W. 664; Debth v. State, 80 Tex. Cr. R. 4, 187 S. W. 341. When there is no question but that the record in a given case presents ample corroboration of the accomplice testimony, or when it does not appear that the conviction rests upon the uncorroborated testimony of accomplices, the failure of the trial court to submit that issue would not be held reversible error by this court in the absence of such exception.

We are not at all inclined to agree with the contenfion of appellant that this conviction is not supported by the testimony, or that it rests upon the uncorroborated testimony of accomplices. Appellant was represented on the trial by counsel who seem to have developed his theory of the case fully.

We find no error appearing in the record, and an affirmance is ordered.

On Motion for Rehearing.

It is urged that the case should have been reversed for failure to submit the law of accomplice testimony. No exception being taken to such failure, and no request appearing for the submission of such issue, no reversible error would appear under the facts. In Huggins v. State, 85 Tex. Cr. R. 205, 210 S. W. 804, we said:

“No request for the submission of the questions whether the rule of accomplice testimony governed the state’s witnesses having been made, their status would not be available to appellant upon appeal unless they came within the accomplice rule as a matter of law and there was not sufficient corroboration. We do not think they were accomplices as a matter of law. Sanchez v. State, 48 Tex. Cr. R. 591, 90 S. W. 641, 122 Am. St. Rep. 772; Wright v. State, 7 Tex. Cr. App. 574, 32 Am. Rep. 599; Allison v. State, 14 Tex. Cr. App. 122; Jones v. State, 48 Tex. Cr. R. 336, 88 S. W. 217, 1 L. R. A. (N. S.) 1024, 122 Am. St. Rep. 759. If the contrary were true, however, we think the circumstances detailed in appellant’s testimony afforded sufficient corroboration.”

This is approved in Chandler v. State, 230 S. W. 1003. If certain witnesses were accomplices, as contended by appellant, but which we are not prepared to admit, still, it appearing in the record that there is ample evidence to corroborate said witnesses, the failure to submit such issue by the court would not constitute reversible error.

The motion for rehearing is overruled. 
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