
    BAUCHAM v. STATE.
    (No. 7898.)
    (Court of Criminal Appeals of Texas.
    Dec. 19, 1923.
    Rehearing Denied Feb. 13, 1924.)
    1. Intoxicating liquors <@=3236(19) — Evidence held to sustain conviction for manufacture.
    Evidence held to sustain conviction for unlawful manufacture of intoxicating liquor.
    2. Crimina! law <@=3829(3) — Intoxicating liquors <@=>239(4) — Denial of instruction as to intent to manufacture held not error.
    In a prosecution for manufacturing intoxicating liquor, where defendant alleged that when passing near the still he was stopped by those operating it and forced to remain against his will, denial of an instruction that defendant must have “willfully intended to manufacture intoxicating liquor at the time and place in question before he would be guilty,” held not erroneous; intent under Pen. Code 1911, art. 51, being presumed from the facts, and defendant’s theory of coercion having been fully covered by other instructions.
    3. Criminal law <§=3508(1) — Refusal to permit codefendant to testify held not error.
    In a prosecution for manufacturing liquor, refusal of the. court to permit a codefendant and one o'f the parties also engaged in manufacture to testify to facts favorable to defendant held not error, in view of Code Cr. Proc. 1911, art. 791, prohibiting the calling of principals, accomplices, or accessories as witnesses for ■one another.
    Appeal from District Court, Upshur County; J. K. Warren, Judge.
    K. Baucham was convicted of unlawful manufacture of intoxicating liquor, and he appeals.
    Affirmed.
    Florence & McClelland, of Gilmer, for appellant.
    Tom Garrard, State’s Atty., of Midland, and Grover C. Morris, Asst. State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for the unlawful manufacture of intoxicating liquor, with punishment in the penitentiary for one year.

The officers testified that upon the date of the transaction complained of they discovered in operation a still situated two or three hundred yards from appellant’s house; that appellant and three other parties were about the still at the time; that from the time they first discovered the parties and the still they were about an hour and a half approaching it, during which time they watched what was going on about the place; that they saw appellant place wood under the still several times during this interval; that when they finally called upon them to surrender appellant and the others ran. The evidence of appellant was that he had no connection whatever with the still or the manufacture of the whisky; that the business was being conducted by white men, he being a negro; that as he was crossing the branch at some short distance below where the still was in operation one of the parties intercepted him and insisted that he go to where the whisky was being made and that he remained there at the insistence of the white men apparently in control of operations; that he had no interest in the still nor the manufacture of the whisky., and only remained there because he was required to do so by the other parties. These defensive issues were all properly submitted to the jury, and the finding upon them was in favor of the state. The complaint that the evidence does not support the verdict is not tenable.

It is contended that the court’s charge is erroneous, in that he should have instructed the jury that appellant must have “willfully intended to manufacture intoxicating liquor at the time and place in question before he would be guilty.” It was unnecessary for the court to so charge. Where intent does not become important as an integral part of the offense itself it is not necessary for the court to submit th(it issue to the jury, in the absence of evidence raising it. Article 51 of the Penal Code reads:

“The intention to commit an offense is presumed whenever the means used is such as would' ordinarily result in the commission of the forbidden act.”

See authorities collated in the notes under said article.

The defensive issues raised by the evidence were submitted to the jury clearly and pertinently. They were told that the mere presence of appellant at the place where intoxicating liquor was being manufactured did not make him guilty, and, although appellant might have been present where parties .were so engaged, yet if he did not aid or assist in the manufacture they should acquit him, and that, if appellant was present at the time the liquor was being manufactured and knew it was being done, then, if he was not interested in the manufacture thereof, but was coerced to remain and aid in its manufacture, or caused to remain through apprehension or fear of the parties who were so engaged therein, appellant would not be guilty. The rights of appellant appear to have been properly guarded.

Appellant tendered as a witness in his behalf one Tim Hall, who was a codefendant and one of the parties engaged in the manufacture of the liquor. Complaint is made because the court declined to permit him to testify to facts favorable to appellant. The court committed no error in this respect. Article 791, Code Criminal Procedure, is positive upon this point against appellant’s contention. It reads:

“Persons charged as principals, accomplices or accessories, whether in the same indictment or different indictments, cannot be introduced as witnesses for one another, but they may claim a severance; and, if any one or more be acquitted, or the prosecution against them be dismissed, they may testify in behalf of the others.”

It does not appear from the record in this case that any application for severance was made. Hall had not been acquitted, and the prosecution was still pending against him. He could not be used as a witness for his co-defendant, the appellant in this case.

Finding no error in the record, and believing the evidence to be sufficient to support the finding of the jury, the judgment is affirmed. 
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