
    LAMB v. STATE.
    (No. 9037.)
    (Court of Criminal Appeals of Texas.
    May 13, 1925.
    Rehearing Denied Oct. 21, 1925.)
    I. Criminal law (§=3511(1) — Testimony of principal against defendant, charged with advising and encouraging crime, must be corroborated.
    Where state used as witness party alleged to be principal in trial of offense charging advising and encouraging commission of crime, testimony must be corroborated, not only as to commission of offense, but also ds to fact tbat defendant was brought within purview of Pen.' Code 1911, art. 79, in advising or encouraging its commission.
    2. Criminal law (§=561 i (I) — Evidence held'sufficient to corroborate testimony of principal that defendant advised and encouraged commission of crime.
    In prosecution for advising and encouraging manufacturing intoxicating liquor, evidence held sufficient to corroborate testimony of principal .that accused advised and encouraged him in the commission of the crime, as required under Code Cr.. Proc. 1911, art. 801.
    <§x=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Gonzales County ; Lester Holt, Judge.
    Jack Lamb was convicted of advising and encouraging commission of crime of manufacturing intoxicating liquor, and be appeals.
    Affirmed.
    Midkiff & Green, of Gonzales, for appellant.
    Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Tbe indictment charged tbat Dudly Sinclair unlawfully manufactured' intoxicating liquor, and tbat defendant, before the commission of tbe offense, advised and encouraged Sinclair to commit it; defendant not being present when it was committed. A conviction of defendant resulted, with punishment fixed at two years in tbe penitentiary.

No complaint is made of tbe charge, and no bills of exception appear in te record1. Tbbe sole question raised on appeal is whether-the evidence sufficiently corroborates Sinclair, whose testimony makes out a complete-case for the state, but must be corroborated as the law requires before a conviction can be upheld. Article 891, O. C. P.

It is settled law tbat, where the state uses as a witness tbe party alleged to be a principal in tbe trial of an offense such as charged in tbe present case, bis testimony must be corroborated, not only as to tbe fact tbat tbe offense was committed by tbe principal (being in this case tbe manufacture of whisky by Sinclair), but also as to tbe fact tbat defendant was brought within tbe purview of tbe statute (article 79, P. 0.) in advising .or ■ encouraging its commission (Hall v. State, 52 Tex. Cr. R. 250, 106 S. W. 379).

Regardless of Sinclair’s evidence, the-other testimony establishes conclusively tbat be bad manufactured whisky. A still and considerable quantities of whisky were found by tbe officers on bis premises, and be bad delivered whisky to parties at bis premises-on numbers of occasions. So, without further review of tbe evidence, it may’ be said tbat Sinclair was corroborated in bis testimony that be committed tbe offense. Upon, the other feature as to defendant advising and encouraging him in its commission we note tbe following circumstances appear from tbe record: John Goodson testified that be bad-, a still which be wanted to sell, and talked to defendant about it, and made him a price on it; that no trade was closed at the first conversation, but defendant said he thought he could sell it for witness, and would see him later; that he afterwards closed the trade with deféndant, who told witness some negroes would come for the still; that two negroes, Ab McPherson and Jim King, did come after it, telling witness defendant had sent them for it. The negro King testified that he got a still from Mr. Goodson one night, and 'that he and McPherson delivered it to Sinclair. After Sinclair’s arrest, Pier-son, his father-in-law, had an interview with defendant, in which Pierson says defendant agreed to pay half the lawyer’s fee for Sinclair, but later declined to do this; that defendant said, in talking to Sinclair:

“I sent you the still down there, and I paid you $8 a gallon for your whisky, and sold it for $16, and I think I am done with it. I have done my part.”

Defendant admitted sending the negroes to Goodson’s after the still and having them take it to Sinclair’s place, but claimed he bought it for $25 and sold it for $30. He also admitted sending to Sinclair’s for whis-ky a number of times by two negroes, Jim Brooks and Ab McPherson. He identified an order produced by Sinclair for five or six gallons, but disclaimed getting this particular whisky; saying, “Old Ab said he spilled it,” going down a hill. He said sometimes he would send an order for the whisky and at other times not.

It was the defendant’s claim that he never advised or encouraged Sinclair to make whis-ky, but that at the latter’s request defendant sold him the still which he had bought from Goodson, and that such whisky as he procured from Sinclair was bought outright, and was not delivered upon any contract he' had with Sinclair.

Sinclair testified that defendant told him it was easy and perfectly safe to make whis-ky; that he would guarantee it was safe, and would go “fifty-fifty” with witness; that defendant agreed to furnish witness a still and stove for $35, to be paid in whisky at $8 per gallon; that defendant was to take all the whisky witness made at that price; that defendant was to send.the still to witness’ house, which he did do, and was to send after the whisky by some negroes, which he also did; that witness had made the whisky, and made some three or four deliveries, amounting to about $75 worth, to .the negroes sent by defendant before the business was interrupted by the officers. Sinclair was getting $8 per gallon, and defendant was supposed to be getting $16 per gallon. Sinclair had no interest in the profits.

We do not undertake to set out all the evidence. Some contradictions occur, as would be expected, but the jury has settled them.

We cannot agree with the contention urged that the evidence fails to furnish sufficient corroboration of Sinclair upon the point that defendant had advised and encouraged the former to manufacture intoxicating liquor. If defendant did this, he would be more than a “seller” of the still, and more than a “purchaser” of the liquor, although he may have been taking all of’the output at a stipulated price.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant urges only the insufficiency of the alleged corroborating testimony of the accomplice Sinclair. He asserts that he only sold a still to Sinclair, and only bought whisky from Sinclair made by him with said still. If a man, knowing that another intends to use a pistol to commit a murder, lends or sells such pistol to such party, he could not escape the proposition of complicity.. Advising and encouraging with knowledge of an illegal purpose may be by act and deed as well as words. Nor would the fact that the accused claimed that his part of the alleged transaction was for pay or profit in any wise assist him to escape the taint of complicity. One who aids in an abortion may do so in his capacity as a physician for pay only, but this would not affect his guilt. One who gathers arms, materials, etc., as the paid agent of the parties who purpose using them in the commission of crime could not shelter himself under the proposition that he was selling his time and his services. The man who encourages thievery by receiving and concealing stolen property, and the person who in like fashion eats or helps to hide or destroy the fruits of the theft, makes himself an accomplice. One' who is making or selling whis-ky himself, and puts another in charge of the operation, and tells him how to make the liquor, or where to sell it, is unquestionably encouraging the commission of a crime. If appellant sold the still to Sinclair, knowing the illegal purpose of the latter, or if he furnished Sinclair a market, in the absence of the special statute taking the purchaser out of the list of accomplices in liquor transactions, he would, in general legal parlance, be an accomplice. We think the testimony amply showed the aid and encouragement of Sinclair by appellant, and that the motion should be overruled.  