Appellant was convicted in the District Court of Denton County of manufacturing intoxicating liquor, and his punishment fixed at one year in the penitentiary.
The record seems to satisfactorily show the manufacture of intoxicating liquor at the house occupied by appellant. The evidence for the State and the appellant was in conflict, but that offered in support of the conclusion of guilt is deemed sufficient.
No error appears in the court stating in paragraph one of his charge that it was unlawful for any person to directly or indirectly manufacture intoxicating liquor. The bill complaining of this presents no ground upon which the exception to the charge would seem to rest.
The court submitted to the jury the law of the unlawful manufacture of spirituous, etc., liquors. No other offense was charged in *Page 587 the indictment. We see no reason why the court should give the special instruction to the effect that the jury could not convict the defendant for possessing liquor, nor for having mash in his possession, nor for having a still. The trial court is not required to submit special charges warning the jury not to convict of some character of offense not submitted in the charge, unless there appears reasonable danger that such might be the case.
From bill of exceptions No. 3 it appears that appellant asked a special charge which is as follows:
"Gentlemen of the Jury: For the defendant to be indirectly interested in the manufacture of liquor so as to be guilty of any offense, you must find and believe from the evidence beyond a reasonable doubt that though personally not present at the time and place where said intoxicating liquor was manufactured, that he had some interest therein and if you have a reasonable doubt of his having some interest therein you will find the defendant not guilty."
It is apparent from an inspection of the court's main charge that after this special instruction was presented the court inserted it in the main charge as paragraph 2a. Having been requested by appellant as above stated, he would be in no position to except to the court's action in giving it whether as a part of the main charge or in a special instruction.
The special charge, complaint of which appears in bill of exceptions No. 4, in substance asking that the jury be told that in considering the suspended sentence they would not consider the fact that the accused had been convicted at a former term for possessing liquor, because of the fact that the court of Criminal Appeals held that in his case his possession of liquor was not an offense and reversed and dismissed the case was improper and the court correctly refused the charge. Bill of exceptions No. 5 is to the refusal of the court to give appellant a new trial. It presents no error. Bill No. 7 as qualified by the court below presents no error.
There are three special charges in the record. None of them show by any notation thereon that refusal to give them was excepted to, nor is there separate bills complaining of such refusal.
The record does not present any error, and the judgment of the trial court will be affirmed.
Affirmed.
ON REHEARING. June 18, 1924.