
    CAMPBELL v. STATE.
    (No. 7877.)
    (Court of Criminal Appeals of Texas.
    Nov. 7, 1923.
    Rehearing Denied Jan. 23, 1924.)
    Intoxicating liquors &wkey;>239(I)— Charge that mere presence would not make accused guilty of manufacturing intoxicating liquor held sufficient.
    Where, in a prosecution for unlawfully manufacturing liquor, accused’s defense was that he was present merely to dissuade others from committing the offense, a charge that the mere presence of a person at the time and place of the commission of an offense would not make him a principal, and that, if accused went to the still, but did not aid or encourage the making of whisky, if whisky was made, the jury could not convict him, helé sufficient to protect accused’s rights.
    Appeal from District Court, Titus County; R. T. Wilkinson, Judge.
    Wesley Campbell was convicted of unlawfully manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    J. A. Ward, of Mt. Pleasant, and B. B. Sturgeon, of Paris, for appellant.
    Tom Garrard, State’s Atty., of Midland, and Grover C. Morris, Asst. State’s Atty., of Devine, for the State.
   MORROW, P. J.

The offense is the unlawful manufacture of intoxicating liquor; punishment fixed at confinement in the peniten-' tiary for a period of one year. A still was observed in operation by the state’s witness, who came upon it accidentally, and found the appellant, and others present. According to the state’s theory, appellant was taking part in the manufacture of whisky, which was in progress.

Appellant testified, conceding his presence, but asserted that he was taking no part and had no interest in the transaction, except that he had endeavored to dissuade his brother and others from committing the offense.

The only rulings complained of are those touching the refusal of certain special charges. Each of these were designed to present in an affirmative manner appellant’s defensive theory, namely, that his mere presence would not justify a conviction, and that he took no part in the commission of the offense, and gave no encouragement to those who were making the whisky.

The law of principals was submitted to the jury in a paragraph of the charge which elicited no complaint from the appellant, and in which no departure from the approved precedents has been observed. In connection with it the following paragraph was embraced in the main charge:

(.“You are further instructed that the mere presence of a person at the time and place of the commission of an offense would not make him a principal, and if you believe or have a reasonable doubt as to such fact, that the defendant went to the still, but did not aid or encourage by acts or word the making of whis-ky, if whisky was made, you cannot convict him.”

We are unable to conclude that any further instruction was required to inform the jury of the applicable law, and to protect the rights of the appellant.

The record revealing no error, the judgment is affirmed.

On Motion for Rehearing.

DATTIMORE, J.

In his motion for rehearing appellant insists that the charge of the court did not affirmatively present the theory of his defense. In our original opinion we quoted from the main charge in an effort to show that the charge as a whole did present the defendant’s theory. The pith of that theory was that, though the accused was admittedly present at the still, which was in operation when discovered and visited by the state witness, he took no part in the illicit manufacture of liquor either by acts or words, and was therefore not guilty. We have again reviewed the special charges asked by appellant, and are unable to conclude that they present more forcibly the affirmative defensive theory than does that part of the main charge quoted in our original opinion. They are too long to set out in full, but the gist of each of said special charges is the same as that contained in the paragraph of the court’s charge quoted. The appellant’s theory of the case, as stated above, is not added to nor more forcibly presented by incorporating in a charge presenting it the additional statements which are to be found in the special charges mentioned.

Being unable to agree with either of the contentions made in the motion, same will be overruled. 
      <3&wkey;For other cases see same topic and KEY-NUMBEK. m all Key-Numbered Digests and Indexes
     