
    WOYTEK v. STATE.
    (No. 8900.)
    (Court of Criminal Appeals of Texas.
    April 8, 1925.
    Rehearing Denied May 6, 1925.)
    I. Intoxicating liquors <&wkey;236(4) — Defendant’s presence when intoxicating liquors Were being transported insufficient to characterize him as principal offender.
    In-prosecution for transporting intoxicating liquors, defendant’s presence in transaction would not be sufficient to characterize him as a principal offender without some other fact.
    .2. Intoxicating liquors <&wkey;236(4) — Defendant’s relation to transportation of intoxicating liquors subject tif proof by circumstantial evidence.
    In prosecution for transporting intoxicating liquors, defendant’s relation to transaction was a subject of proof by circumstantial evidence.
    3. Intoxicating liquors <@=>236 (4) — Circumstances held sufficient to connect defendant • with transportation of intoxioating liquors as principal offender.
    In prosecution for transporting intoxicating liquors, circumstances held, sufficient to, connect defendant with transaction under conditions supporting conclusion of jury under Code Cr. Proc. 1911, art. 786, tllat lie was a principal offender.
    4. Criminal law <&wkey;678(i/2) — Court’s procedure, in requiring state to elect as basis for conviction between the evidence in liquor prosecution, held not erroneous.
    Court’s procedure in liquor prosecution, in requiring state to elect as basis for conviction between evidence that members of party, had a small quantity of whisky in a bottle, and that there was whisky in their car, by verbally instructing jury that, as a basis for conviction, they would be confined to testimony touching whisky found in car at time of arrest, and by written charge that, if defendant was not aware that car contained liquor, or if jury had a reasonable doubt thereon, they should acquit him, was not erroneous. ' <
    
    5. Criminal law &wkey;>392 — Competent for state to explain absence of witness.
    In liquor prosecution, in which defendant testified in a manner as to put his accomplice, who testified as a witness against him, in attitude of bearing onus of transaction, it was proper for state to meet any adverse inference that might be drawn from failure to produce such witness, by showing that he was not available because he was in the penitentiary.
    On Motion for Rehearing.
    6. Criminal law @=510 — Weight of testimony of accomplice witness in liquor prosecution not affected because uncorroborated.
    Weight of testimony of defendant’s accomplice in prosecution for transporting intoxicating liquors was not affected because uncorroborated, in view of Acts 37th Leg. (1921) 1st Called Sess. c. 61, subd. 2c (Yernon’s Ann. 'Pen. Code Supp. 1922, art. 588%03), providing that purchaser, transporter, or possessor of prohibited liquors shall not be an accomplice when a witness in any such trial.
    Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
    F. H. Woytek was convicted of transporting intoxicating liquors, and he appeals.
    Affirmed.
    Joe W. Taylor, and J. A. Kibler, both of Waco, for appellant.
    , Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the' State.
   MORROW, P. J.

The offense is transporting intoxicating liquors; punishment fixed at confinement in the penitentiary for one year.

■ According to the state’s witness Willis, appellant and two other persons' were riding in an automobile which was found to contain 4 half-gallon fruit jars full of whisky. Leith was driving the car. Appellant and Yosco rode on the rear seat. The fruit jars were in a carton sitting in the tonneau and in front of the appellant.

' The appellant testified that he was not aware that there was anjr whisky in the ear; that he had no interest in either the whisky or the car; that the car belonged to Leith.

Leith, Vosco, and the appellant were at the same hotel. Vosco was invited to go for a ride-in the afternoon in Leith’s ear. They drove upon a county road to a house. Leith got out of the car, but the appellant remained in 'or near it. Night had fallen,, and it was dark when Leith returned. He brought with him a box which he put in the ear. The party then went back to Waco; Leith driving the car. There was another man along who left the car before the arrest was made. Leith was the one who planned the trip.’ Appellant thought the box contained eggs, as Leith had said he wanted to get some eggs. The foregoing is the appellant’s version.

Yosco’s version was this: After reaching the house to which the party went, all of them got out of the car, but he remained in it. Appellant and the stranger went back' somewhere and returned in about 15 minutes. Upon leaving they had nothing in their hands, and they returned empty handed. Leith just walked around the car and remained near it. After they returned, a man brought a box. The witness could not say whether it was the stranger who had gone out with them or another who brought the box, but he thought it was the stranger. After the appellant came back, it was not long before the box was brought and put in the car. The man who returned gave the parties some whisky in a bottle which they drank. Vosco said that he paid no attention to the contents of the box, but that it was put in the car and taken to Waco.

Appellant insists that the evidence is insufficient to support the verdict, arguing that, by the appellant’s specific statement upon the witness stand that he did not know what- was in the box, that he believed it to be eggs, that he had no knowledge that the party was going after whisky or had gotten whisky and had no interest in it, that in the course of his testimony the witness Vosco stated that, upon leaving the ho.tel, he heard something said about" eggs, the appellant’s defensive theory was established; and that the inference to be drawn from the circumstances by the jury that the appellant was a principal offender in the commission of the offense was not sufficient to overcome his specific testimony to the contrary. The appellant’s presence, unless there was some other fact to characterize him as a principal offender, would not be sufficient. However, his relation to the transaction was a subject of proof by circumstantial evidence.

There is evidence from which the jury may have concluded that at the time of leaving the hotel whisky was one thing upon the minds of the party. Vosco had been drinking whisky before their departure, appellant had seme in his possession, and they drove to tlie place where the box was acquired which was taken from them at the time of the arrest and found to contain whisky. At that point some person in the party or connected with it produced some whisky. Vos-co’s testimony is direct that he and Leith remained at the car while appellant and the stranger, whose identity was not disclosed at the trial, left, and that some one who, according to Yosco’s best judgment was the stranger, afterwards brought a carton containing the whisky and put it in the car between the front and rear seats; the rear seat occupied by Vosco and the appellant on the return journey to Waco. At the time of the arrest, there were but three men in the car, namely, Leith, Vosco, and the appellant. The stranger had disappeared. Without entering into more detail, we are of the opinion that, unexplained, the circumstances were sufficient to connect the appellant with the transaction under conditions supporting the conclusion of the jury that he was a principal offender; that is, that he was a conscious party to the transporting of the whis-ky in question. He endeavored to explain it by his own testimony. If the jury had accepted his testimony as true, they should have exculpated him. The court, in an appropriate charge, told the jury to do so.

Our statute declares the jury to be the judge of the credibility of the witnesses and the weight to be given to their testimony. Article 786, C. C. P. The appellant’s interest in the matter and his connection with the offense, especially in view of the circumstances surrounding him, as shown by the record, was such that it cannot be justly said that in discrediting him the jury acted capriciously or without adequate basis for disbelieving the testimony. See Ruling Case Law, vol. 28, p. 660, § 245, also page 615, § 202. See, also, Vernon’s Tex. Crim. Stat. vol. 2, p. 687; Costillo v. State (Tex. Cr. App.) 266 S. W. 158.

The appellant made a motion to require the state to elect as a basis for conviction between the evidence that the members of the party had a small quantity of whisky in a bottle and the testimony that in their , car was a carton containing 4 half-gallon jars of whisky. The court granted the motion, and asked the appellant’s counsel if an instruction should be given to the jury upon the subject, but was told by him that such an instruction would be waived. The court then verbally instructed the jury that, as a basis for a conviction, they would be confined to the testimony touching the jars of whisky found in the automobile at the time of the arrest, and in a written charge again instructed the jury that, if the appellant was not aware of the fact that the box found in the ear at the time of the arrest contained liquor, or if they had a reasonable doubt upon the subject, they would acquit him. Counsel for the state, in the presence of the jury, conceded that the state did not seek a conviction because of the bottle of whisky, but relied only on the evidence going to show that the jars of whisky were transported. -

There was an exception to the manner in which the court proceeded in the matter of election, but, as we understand the record, wé think the procedure mentioned does not warrant a reversal of the judgment.

Complaint is made in a bill of exceptions that the prosecuting attorney, on the cross-examination of the appellant, asked him the following questions:

“Q. You know Leith is not here? A. Yes, sir.
“Q. He is in the penitentiary, isn’t he? ”

The last question was not answered. The court instructed the jury not to consider it. The bill in which the matter is presented is too meager to be self-explanatory. However, when construed ,in the light of the record, we think it does not reveal error; at least not such error as warrants a reversal. Appellant, in his direct examination, testified in a manner as to put Leith in the attitude of bearing the onus of the transaction. To meet any adverse inference that might be drawn from >the failure of the state to produce Leith as a witness at the trial to contradict the áppellant, it was, in our opinion, competent to show that he was not available. See Uncferhill on Crim. Ev. (3d Ed.) § 45; Ruling Case Law, vol. 8, p. 173. The state having failed to introduce Leith as a witness, its failure to do so or to explain his absence would have been a proper subject of comment upon the part of the defense. Mercer v. State, 17 Tex. App. 452; Branch’s Ann. Tex. P. C. § 373.

Finding no error in the record warranting a reversal, we order an affirmance of the judgment.

On Motion for Rehearing.

The principle of the law which declares that, when an offense is committed by one person, the mere presence of another is not sufficient to characterize him as a principal offender, has often been recognized. See Branch’s Ann. Tex. P. C. § 680; Newton v. State (Tex. Cr. App.) 267 S. W. 272; Richardson v. State, 89 Tex. Cr. R. 17, 228 S. W. 1094.

In our opinion, the conclusion reached upon the original hearing in the present case portrays no departure from this rule. This case was submitted under the law of circumstantial evidence. From the state’s standpoint, the evidence reveals a series of acts in addition to his presence which, in our judgment, warranted the court in instructing the jury on the law of principal offenders, and which were sufficient to support the finding of the jury against the appellant upon that issue.

The point made in the motion- that some of these acts come from the uncorroborated- testimony of an accomplice witness is not deemed sound, for the reason that it is declared by statute that, in the trial of this character of cases—

“the purchaser, transporten, or possessor of any of the liquors prohibited herein shall not be held in law or in fact to be an accomplice, when a witness in any such trial.” Acts of 37th Leg. 1st Called Sess. c. 61, subd. 2c (Vernon’s Ann. Pen. Code Supp. 1922, art. 588¼a3).

Under this statute, Vosco was not an accomplice witness, and the jury was warranted in founding a verdict upon his testimony. In instructing the jury to the contrary, the court was overgenerous to the appellant.

The motion for rehearing is overruled. 
      <@=For other oases see same topic and KEY-NTJMBER in all Key-Numbered Digests and Indexes
     