
    RODRIQUEZ v. STATE.
    (No. 8940.)
    (Court of Criminal Appeals of Texas.
    Jan. 28, 1925.
    On Motion for Rehearing, April 15, 1925.)
    1. Indictment and information <@=>132(3) — Failure to require election on counts in liquor prosecution held not erroneous.
    In liquor prosecution, failure to require state to- elect on indictment charging in one count transportation and in another possession for purposes of sale of intoxicating liquor held not erroneous, where both counts were inserted to meet possible phases of testimony on trial.
    2. Indictment and information <@=>132(3) — Both counts in liquor prosecution properly submitted to jury where supported by evidence.
    Both counts of indictment in liquor prosecution, one charging transportation, and other possession for purposes of sale,of intoxicating liquor, were properly submitted to jury where both were supported by evidence.
    3. Criminal law <@=>823(5) — Refusal of requested special charge held not erroneous in view) of court’s change.
    Refusal1 of defendant’s special charge requiring state to prove beyond a reasonable doubt that defendant transported intoxicating liquors, and that it was not a violation of law to intend to transport liquor, held not erroneous, where court charged .that defendant was guilty if he transported liquor, and that if he did not, or jury had a reasonable doubt of that fact, he should be acquitted.
    On Motion for Rehearing.
    4. Intoxicating liquors <@=>236(20) — Evidence held to show transportation of intoxicating liquor.
    , Evidence held to show that defendant transported intoxicating liquors within meaning of the law.
    
      5. Intoxicating liquors <&wkey;167 — Defendant guilty as principal offender in transportation of intoxicating liquor, if giving money to another, to purchase it and joining in its transportation. ■
    If defendant gave money to another to procure whislry, and he in pursuance of such agreement got the whisky and was joined by defendant while bringing liquor back to point where they were to drink it, defendant would be guilty as a principal offender, in view of Pen. Code 1911, arts. 76, 78, in transportation of such liquor.
    6. Intoxicating liquors <&wkey;238(2) —'Evidence held to authorize a charge on principals in liquor prosecution.
    In prosecution for transporting intoxicating liquors evidence held to authorize a charge on principals.
    7. Criminal law &wkey;>717 — Improper argument of district attorney held to constitute reversible error.
    In liquor prosecution, in which court gave defendant’s requested special charge that case was to be decided on law applicable to circumstantial evidence, argument of district attorney that ease was not on circumstantial evidence, and that court did not believe it to be so, held reversible error.
    8. Criminal law &wkey;>887 — Requested special charge given by court becomes law of case.
    Requested special charge given by court becomes a part of law of case, and is entitled to receive same consideration from jury as instructions contained in main charge.
    9. Criminal law <&wkey;7l3, 804(1) — Court may not give verbal charges to jury, nor sanction district attorney’s statements nullifying charges given.
    Court may not give verbal charges to jury, nor sanction statements as to law of case by district attorney thereby nullifying charges already given.
    «SssiFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Caldwell County; M. C. Jeffrey, Judge.
    Francisco Rodriquez was convicted of transporting intoxicating liquor, and he appeals.
    Reversed and remanded.
    C. F. Richards and E. B. Coopwood, both of Lockhart, and Hart, Patterson & Hart, of Austin, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Caldwell county of transporting intoxicating liquor, and his punishment fixed at one year in the penitentiary.

The state witnesses testified to facts which show that appellant was transporting a gallon of liquor on the occasion in question; that he brought it to a Mexican celebration and that he and some companions carried it off to a part of the grounds where they were found in possession of it. We think the court’s definition of transportation was correct. There were three Mexicans going together from a point in the grounds where the celebration was in progress down to the point where the officers arrested the party. The name of one of the Mexicans was unknown to the state witnesses. Appellant testified in his own behalf that the whisky was' brought to the place where the officers arrested the party by one Yicente Fonseca. The court charged in the usual form the law of principals. An exception directed at the charge, upon the ground that there were no-facts calling for same, is without merit.

The indictment contained two counts, one charging the transportation and the other possession for purposes of sale, of intoxicating liquor. Appellant complains because the court refused to compel the state to elect, and submitted both counts to the jury. There was no error in the action of the coitrt. The two counts were inserted in the indictment to meet possible phases of the testimony on the trial. There was evidence tending to support each issue. The court properly submitted both counts. The verdict of the jury was confined to the count charging transportation, and the judgment and sentence followed the verdict. No error appears in this matter.

The complaint that there, was no sufficient showing in the facts of a transportation of the liquor in question seems to us without foundation; the same is true of the complaint of the submission to the jury of the issue of transportation.

There is complaint of the refusal of a special charge in which appellant asserts that he sought to have presented his theory of the defense. The 'trial court instructed the jury that, if appellant transported the-liquor, he should be found guilty of this offense ; that if he did not, or if the jury had a reasonable doubt of that fact, he should be acquitted. A special charge was prepared by appellant instructing the jury that the state must prove by competent testimony beyond a reasonable doubt that the accused did in fact transport intoxicating, liquors as that term is defined, and that it was not a violation of the law for a person to intend or to have an intention to transport intoxicating liquor. We think the appellant’s theory of the case sufficiently safeguarded and presented by the charges given.

At the instance of appellant, the court gave to the jury a special charge presenting the law of circumstantial evidence. Complaint is made in a bill of exceptions that in his argument to the jury the state’s attorney insisted that the case did not rest wholly upon circumstantial evidence. Objection is made also that the court refused to give to the jury an additional charge instructing them, after the argument was over, that this was a ease on circumstantial evidence. We do not deem the action of the trial court in refusing this request to be erroneous. The court gave the requested charge and told the jury that the case was one of circumstantial evidence. The only feature of the case which brought it within that rule was that the state witness testified that, when he saw appellant going with the other Mexicans through the celebration grounds to the point where they were arrested, appellant was carrying a package about the size of a gallon jar of whisky, wrapped in a newspaper. The other two Mexicans with him had nothing in their hands. The officers followed the three men in the direction in which they were going and found them together with a newspaper wrapping lying on the ground and they had the gallon jar of whisky. It might be deemed doubtful as to whether the case was one on circumstantial evidence. We do not think the argument of the state’s attorney of any material harm to appellant.

Finding no error in the record, the judg.ment will be affirmed.

On Motion for Rehearing.

Appellant’s motion is based dn a misconception of the facts. The Mexican celebration, which was in progress, was a public affair. There is not a suggestion in the record that appellant had any connection with the grounds on which same was being held. If he had been one of those who rented the grounds for the purpose of holding the celebration, this would have given him no right to transport liquor thereto or thereon, but not a word of evidence supports the statement in appellant’s motion that “appellant and other Mexicans had rented said property.” The grounds were inclosed. No witness said there were any automobiles within the inelosure. The officer who first saw appellant in the grounds said he was “walking in the grounds from the entrance, or the gate where they entered the Mexican celebration, * * * had a bundle under his arm; * * * it was a big bundle with a newspaper wrapped around it, * * * about the size of a gallon jug or jar.” The officer further testified that as appellant crossed the grounds he motioned to two other Mexicans who followed him around the corner of the dance hall. In a moment or two the officer went to where the men had gone and found the three Mexicans with a gallon jug of whisky, and near by lay a newspaper which looked as though it had been wrapped around something. Appellant told them it was his whisky, said he got it from a white man in a big automobile. The officer carried him out of the grounds to an automobile.

Appellant testified that he gave money to Vicente Fonseca to get whisky with, and was told by Vicente that he went over on the other side of the river to get the whisky. Appellant denied having brought the whisky to where the officers said they saw and found if and him, but said that Vicente brought it. These facts in evidence sufficiently show that appellant brought the liquor to the celebration, and that he transported it within the meaning of the law. Warren v. State, 94 Tex. Cr. R. 243, 250 S. W. 429; Hill v. State, 96 Tex. Cr. R. 165, 256 S. W. 921; West v. State, 93 Tex. Cr. R. 370, 248 S. W. 371, and Lamb v. State, 95 Tex. Cr. R. 457, 255 S. W. 424, in nowise hold contrary to what we have just said.

Appellant further insists that if guilty at all, he was but an accomplice. Neither the state’s testimony nor that for the appellant supports such a theory. That three Mexicans were interested in or connected with this transaction seems without dispute. Appellant testified that three of them contributed the money with which the whisky was bought. Scrutchin, Sanderson, and Crook all testified that there were three and but three Mexicans engaged either in carrying the whisky or following each other to-the place where they began to drink it and where the arrest took place. The state witnesses say appellant was the one carrying the jug and that the others were following or accompanying him. Appellant swore that Vicente got the jug of whisky with money furnished in part by him, appellant, for that purpose. Appellant said in his testimony:

“We all got together and went to the place where we were drinking, me, Vicente, and Francisco.”

One whose connection with a crime ends before its actual commission is an accomplice; but any person who shall engage in procuring aid, arms, or means of any kind to assist in the commission of an offense, while others are executing the unlawful act (article 76, P. C. ) or any person who advises or agrees to the commission of an offense, and who is present when the same is committed, is a principal, whether he aids or not in the illegal act. Article 78, P. C. If, therefore, appellant gave money to Vicente to procure the whisky with and the latter went across the river in pursuance of this agreement, got the whisky and was joined by appellant and. Francisco while he was bringing the liquor back to the point where they were to drink it, this would make appellant guilty as a principal offender with Vicente in the transportation. If appellant be guilty by reason of his own transportation from some automobile or other point, or by reason of being present advising and agreeing to such transportation by Vicente, he could be found guilty under either of these facts under the form of the indictment presented against him.

The court’s charge told the jury that all persons wlio act together in the cominission of an offense are principals, and that the true criterion in determining who are principals is: Bid the parties act together in the commission of the offense, etc. The exception leveled at this latter paragraph of the charge seems hypercritical and without support. As above indicated, we think a charge on principals called for by the testimony, and that appellant might be found guilty either on the theory of his acting as the actual transporter, or on the theory of his acting together with Vicente.

Upon more mature consideration we have concluded that we were in error in the following matter. The learned trial judge did not submit in his main charge the law applicable to circumstantial evidence, but .did give a special charge requested by appellant instructing the jury that the case was to be decided on that theory. When this special charge was given it became a part of the law of the case and was entitled to receive the same consideration at the hands of the jury as those instructions contained in the main charge. Such a charge should be given for no other purpose than that it is the law of the case. Manifestly it would be erroneous for the trial' court to give an instruction to the jury, and in'the customary language tell them they are to receive the law from the court which. is herein given them, and then the state’s attorney be permitted to assault any part of the charge and tell the jury that it is not the law, and the court knows it is not the law and did not intend for them to be governed thereby. By an appropriate bill of exceptions in this case, it is shown that in the closing argument for the state, and in the last few minutes of same the district attorney told the jury, in substance, that this was not a case on circumstantial evidence, and that the court did not believe it to be such case, 'and that the court had simply given to them the special charge because appellant’s counsel had requested same, and that it had been requested only by appellant’s counsel in order that they might make a big speech in the case.

Said bill further shows that at once after these statements the argument closed, and appellant asked that- the court give to the jury a special charge telling them again that the case was one on circumstantial evidence, and further that they should consider the special charge already given as the law of the case and entitled to the same weight and consideration as the general charge; and further that they should not accept the statement of the district attorney to the effect that the court did not believe this a cáse on circumstantial evidence. The court refused to hold the jury until additional charges were prepared by appellant containing the matters just referred to, but told them they could consider the charges as prepared arid refused. The court attaches a qualification to the bill of exceptions which does not seem to us to relieve the situation at all. The court may not give verbal charges to the jury nor may he so sanction statements as to the law of the case made by the district attorney as in effect to make his approval thereof nullify charges already given. If this was a case on circumstantial evidence, as instructed by the court, the assault permitted by the district attorney should not have been allowed. We think this conduct of the district attorney and of the learned trial judge such as to necessitate a reversal of this case.

The motion for rehearing is granted, the judgment of affirmance set aside, and the case is now reversed and remanded.  