
    BURK v. STATE.
    (No. 11146.)
    Court of Criminal Appeals of Texas.
    Nov. 23, 1927.
    Rehearing Denied Jan. 4, 1928.
    1. Jury <§=359(1) — Appointment at regular term of jury commissioners to draw petit jury by whom defendant was tried at special term called during general term held proper (Rev. St. 1925, arts. 1920, 1921, 2104; Code Cr. Proo. 1925, arts. 333, 640).
    Where judge, during regular term, entered on minutes a call for special term of court, and appointed jury commissioners during regular term to draw petit jurors for special term, and commissioners during regular term drew petit jury, by whom defendant was tried during special term, procedure thus 'adopted was not a substantial departure from procedure prescribed by Rev. St. 1925, arts. 1929, 1921, 2104, and Code Cr. Proc. 1925, arts. 333, 640.
    2. Intoxicating liquors <©=3239(3) — Evidence that liquor was being manufactured in defendant’s presence, and that he knew of still, authorized charge on law of principals.
    In prosecution for manufacturing liquor, evidence that offense was being committed while defendant was present, that defendant was taking part in enterprise, or at least knew that still was in operation before he went there, authorized charge on law of principals.
    3. Intoxicating liquors <©=3239(3) — Charge authorizing conviction, if jury believed beyond reasonable doubt that defendant acted alone or with others in manufacturing liquor, held-proper.
    In prosecution for manufacturing intoxicating liquor, charge that, if jury believed beyond reasonable doubt that defendant was acting alone or with others engaged in manufacturing liquor, conviction would be authorized, held proper.
    4. Intoxicating liquors <©=3239(3) — Charge that persons knowing unlawful intent of others, present and aiding in manufacturing liquor, or previously agreeing to offense, are principals, held proper.
    In prosecution for manufacturing' intoxicating liquor, charge that all persons knowing unlawful intent of others, and being present, aiding or encouraging, by words and gestures, persons actually committing offense, and that all persons previously agreeing to commission of offense and present would be principals, held proper.
    5_ intoxicating liquors 239(3) — Charge to acquit, if defendant was mere bystander, or passing by, without aiding in manufacturing liquor, sufficiently charged such affirmative defenses.
    In prosecution for manufacturing liquor, charge to acquit, if defendant was mere innocent bystander, or innocently passing by, without aiding in offense, or having control over equipment, sufficiently instructed jury on affirmative defense that he was mere bystander, and that mere presence would not warrant conviction.
    Appeal from District Court, Panola County ; R. T. Brown, Judge.
    William Burk was convicted of unlawful manufacture of intoxicating liquor, and he appeals.
    Afijrmed.
    J. G. Woolworth and B. W. Baker, both of Carthage, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is the unlawful manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year and six months.

Prom bill of exceptions No. 1, as qualified, we understand that, at the term preceding the March term of the district court, jury commissioners were appointed to select grand and petit juries for the March term; that, after they had performed that service, and had been discharged, the judge concluded to call a special term of court to begin on the 2d day of May, and, upon entering the order for the convening of the special term (which order was made on April 5th), the court appointed jury commissioners to select persons to compose the grand and petit juries for the special term of court. Claiming that the procedure mentioned was violative of the statutory provisions relating to the subject of the selection of juries, the appellant' sought to quash the array, pointing to articles 1921 and 2104 of the Revised Civil Statutes 1925, and article 333, C. C. P. 1925. Article 640, C. C. P. 1925, may also be taken into account in considering the point made. Prom that article we quote:

“When, from any cause, there are no regular jurors for the week from whom to select a jury, the court shall order the sheriff to summon forthwith such number of qualified persons as it may deem sufficient; and, from those summoned, a jury shall be formed.”

Touching this siibject, in a recent case the following remarks were made:

“This court has held, where there was an arbitrary refusal to appoint jury commissioners at the previous term, that advantage might be taken of such failure by one on trial for' the succeeding term. See Woolen v. State, 68 Tex. Cr. R. 189, 150 S. W. 1165. Where the failure to appoint jury commissioners at the previous term was by inadvertence, or for some good cause, complaint of it is not tenable, but the judge at the succeeding term would have the privilege of supplying a jury either by the appointment then of jury commissioners or supplying a jury under the terms of article 640, supra, or article 2108, R. S. 1925. See Ex parte Holland, 91 Tex. Cr. R. 343, 238 S. W. 654; Sanchez v. State, 94 Tex. Cr. R. 606, 252 S. W. 548; Gray v. State, 99 Tex. Cr. R. 306, 268 S. W. 941, 269 S. W. 1056; Bennett v. State, 95 Tex. Cr. R. 422, 254 S. W. 949. One who would take .advantage of the failure to appoint jury commissioners must assume the burden of showing that the failure was not for good cause. Sanchez v. State, supra. It has been held that if, during a regular term, a special term is called to convene after adjournment of the regular term and the necessity for a jury commission is not foreseen by the regular judge, and he, for that reason, omits the appointment of jury commissioners, the judge presiding at the special term may proceed to secure a jury either by the appointment of jury commissioners or by an order summoning jurors by the sheriff, as provided in article 640, supra. See King v. State, 90 Tex. Cr. R. 289, 234 S. W. 1107; Sanchez v. State, supra.” Avery v. Millikin et al. v. Hon. M. C. Jeffrey, Dist. Judge (No. 11448; Tex. Cr. App.) 299 S. W. 435, not yet [officially] reported.

In the present instance, the court at the regular term (at the time that he called the special term) having appointed jury commissioners by whom the list from which the jury which tried the appellant was drawn, we are unable to perceive any substantial departure from the procedure prescribed by statute.

In bill No. 2, the sufficiency of the court’s charge is assailed upon several grounds: First, that the facts called for no charge on the law of principal offender; second, that the charge did not embrace the affirmative defense of the appellant, namely, that his- presence was that of a mere bystander; third, that the converse of the law of principals was not embodied in the charge; fourth, that the jury was not instructed that the mere presence of the appellant would not warrant his conviction. In qualifying the bill, the court refers to subdivisions IJ 3, 4, 5, and 6 of the court’s charge as meeting the objections mentioned.

From the statement of facts, it appears that the state’s witness observed a still upon the Adams’ place, at which there were four persons present; namely, Collier, Adams, Davis, and (Burk) the appellant. According to the witness, they had a complete equipment for manufacturing intoxicating liquor, and had manufactured about 5 gallons of whisky. To quote him:

“In other words, they had run one barrel when we got there, ■ and was filling it the second time when we got there.”

The barrels containing the mash were each of a 50-gallon capacity. The appellant and Adams were seen by the witness carrying mash from one of the barrels to the still. The still was located in a small pine thicket. Upon the arrival of the officers, all the parties ran, except Davis, who was crippled.

There was evidence that the still belonged to Alex Adams, who was one of the persons present, but who at the time of the trial was dead.

The appellant introduced witnesses to the effect that his reputation as a law-abiding citizen was good prior to the transaction in question. . He testified that he lived about three-fourths of a mile from the Adams’ place; that at .the time of the raid he had been there 10 or 15 minutes; that, when he arrived at the still, Alex Adams and Mat Collier were there, and that he had no interest in the still, whisky, or mash. He claimed that, while on his way to Henry Stewart’s house, he “heard somebody, and went out across there where they were”; that, when the officers came, he ran; that they did not catch him^, as he outran them. He also claimed that he had no previous knowledge of the location of the still, and that his presence was accidental; that he did not take any part in manufacturing the whisky; and that he did not help to carry a tub of mash. However, he admitted that he knew before he went there that they were making whisky.

The contention that the law of principals was not called for cannot be sustained. The offense was being committed while the appellant was present. According to the state witnesses, he was taking part in the enterprise. According to the appellant’s testimony, as we understand it, he knew that the still was in operation before he went there, but took no part in the transaction.

In paragraph 3 the jury was told, in substance, that, if they believed, beyond a reasonable doubt, that the appellant was acting with Collier, Davis, and Adams, either alone or acting with the parties named, and engaged in manufacturing intoxicating liquor, a conviction would be authorized.

In paragraph 4 the jury was instructed accurately upon the law of principals; all being present and participating in the commission of the offense. He also charged that all persons knowing the unlawful intent of the others, and, being present, aided or encouraged by words or gestures those actually engaged in the commission of the offense, would be principals; and that all persons ■who had previously agreed to the commission of the offense, and are present, are principals. On all three phases of these matters the court embraced an instruction to the jury in which we have perceived no fault so far as the form and substance of it are concerned.

In paragraph 5 there is a charge on circumstantial evidence.

Paragraph 6 of the charge reads as follows:

“If you should believe from the evidence in this case that equipment for the manufacture of intoxicating liquors was possessed,' or that intoxicating liquors were being manufactured, on or about the time and place charged in the indictment, and you further believe that the defendant was ‘there at the time, but, if you should further believe that the defendant was merely an innocent bystander, or had just happened along there on his way to Stewart’s and was not exercising any management or control over the said equipment for the manufacture of intoxicating liquors, or the manufacture of intoxicating liquors, if any, and was not aiding by acts or encouraging by words or gestures the possession of said equipment for the manufacture of intoxicating liquors, or the manufacture of intoxicating liquors, if any, then you will acquit the defendant; or, if you should have a reasonable doubt as to either one of said propositions, then you will acquit the defendant.”

The court’s charge is deemed to have properly instructed the jury upon the issues arising from the evidence, including the theory of the defense.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

Appellant insists that we were in error in not sustaining his attack on the jury panel. We have again examined the question. Unless we misapprehend the facts revealed by the bill bringing the point forward for review, the action of the court seems to be expressly authorized by article 1920, R. C. S. 1925, which reads:

“Whenever a district judge deems it advisable to hold a special term of the district court in any county in his district, such special term may be held; and such judge may convene such term at any time which may be fixed by him. Such district judge' may appoint jury commissioners, who may select and draw grand and petit jurors in accordance with the law. Such jurors may be summoned to appear before such district court at such time as may be designated by the judge thereof. In the discretion of the district judge, a grand jury need not be drawn or impaneled. No new civil cases can be brought to a special term of the district court.”

During the March term of the court, the judge deemed it advisable' and necessary to call a special term. On the 5th day of April, and during the regular term, he caused to be entered on the minutes a call for the special term of court, designating May 2d as the beginning of said special term. On April 5th he appointed jury commissioners to draw pe-tit jurors for the special term; he having determined that a grand jury would not be needed at that time. The jury commissioners appointed drew the petit jurors for the special term, and reported their action to the court during the regular term. It was the jury so drawn which appellant attacked. The jury was not drawn nor the commissioners appointed during vacation; hence it is not necessary to consider whether a vacation drawing or appointment would have been legal.

The motion for rehearing is overruled. 
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