Appellant files a motion for rehearing supported by supplemental citation of authorities urging that the evidence in this case is not sufficient. We have again reviewed the facts. The officers went to appellant's premises on a certain day. As they approached he was on his porch, but when they stopped their car he went in the house and notwithstanding they went in at once and searched the premises, they could not find him. Flight has always been considered an evidence of guilt. The officers found a tub with two smooth holes in it directly opposite each other, and also found a can with evidences of use consisting of smoke and fire stains, mash sticking to the upper and lower parts of the can, paste around the upper edges of the can and a sour odor as of fermented mash. They also found several barrels with some sour mash in them, and found seven gallons of whisky. The sheriff testified that the apparatus found could be used in making whisky, that is that a top could be put on the can and it be made air tight by means of the paste, and that the holes in the side of the tub could be utilized for the exit and entrance of a pipe through which the condensed steam could escape. Appellant gave some illuminating testimony with regard to the apparatus in *Page 327 question and the liquor. The sheriff had testified that the seven gallons of whisky found by him was home-made and not store bought whisky. Appellant on the stand in his own behalf said that one Chester Holliday brought whisky and other paraphernalia to his house the day before it was found by the officers, and that he objected to Chester leaving them, and that the reason he fled when the officers came was because he was excited and knew that the whisky and paraphernalia were there and he was afraid he would be implicated in it. Appellant said that the day before the search Holliday came and brought this stuff and put it in his barn, . . . that he knew that stuff was there, that fellow had put it in there and I was afraid it might implicate me and it excited me very much, I didn't know what to do. I picked up a rope and walked down through the pasture. . . . The first time I ever saw this oil can was when Holliday brought it there. . . . I say that I never did in my life manufacture any whisky; Holliday was making that whisky down on the creek there; . . . as to whether something pointed at my back and I could not stand, — well, that is what pointed at me; as to whether that still pointed at me in the back and I ran, — well, I knew it was in the barn, — I was afraid I was going to be implicated. . . . I say that Holliday put this can there; he brought that can there about three or four days before he brought this stuff; he said he wanted to leave it there for awhile; I did not know what he was going to use it for but I had an idea. Then he brought this whisky there after he brought the can. He brought that barrel from down on the creek. . . . As to whether I never told a single soul about this fellow bringing this whisky and still there, — well, I hadn't seen anybody at that time. Yes, sir, I told him he could not do it, — I told him I rather he would not do it, it might get me into trouble and he said he would take it out of there right away. Appellant was asked the question if that can having wax on it did not create a suspicion in his mind. His answer was: "Well, I had an idea what Holliday used the can for; I did not say anything to Holliday about it."
Appellant refers us to certain cases asserted by him to have been reversed by us whose facts in his opinion were as strong or stronger than those under consideration. Williams v. State,88 Tex. Crim. 402, 227 S.W. Rep., 316, is referred to. In that case it was affirmatively shown that liquor could not be made with the articles found upon the premises of the accused, and no liquor was found from which it could be concluded that the articles had been part of a completed still in use. The case of Thomas v. State, 89 Tex.Crim. Rep., 230 S.W. Rep., 156, is also cited. That case was reversed because of the refusal of an applicable special charge requested. Hardaway v. State,90 Tex. Crim. 485, 236 S.W. Rep., 467, is also presented as authority. In that case the search of appellant's premises disclosed only a two burner stove sitting up by the edge of *Page 328 the house, some tubs, a keg and a barrel containing mash, two buckets of liquid said to be whisky were also found. The charge was manufacturing intoxicating liquor. It would be difficult to conceive how one could be shown guilty of such manufacture simply upon the testimony of the finding in his possession tubs such as might be found around any farm house or other home where washing and other household duties were performed; and a gasoline stove such as is also very commonly used. The suspicious circumstances in the case were the keg and barrel of mash and the two buckets of liquor. This court was of opinion that there should be more conclusive testimony of the fact of manufacture than was reflected by the record.
We are unable to perceive the applicability of either of the authorities to the instant case. In our opinion appellant himself makes out a case against some one for the manufacture of the home-made whisky found in his barn, with the apparatus also found. He attempts to lay it at the door of Chester Holliday. The jury did not agree with his conclusion in this regard but did with his opinion upon the proposition that the whisky had been manufactured. They attributed such manufacture to him, and we are unable to say that their conclusion was without support.
The motion for rehearing will be overruled.
Overruled.