Conviction for manufacturing intoxicating liquor, punishment one year in the penitentiary.
Officers discovered appellant and one Day engaged in the manufacture of liquor, their still being set up in a baygall thicket something like a half mile from the camp occupied by appellant and Day, and in which they claimed to be staying while engaged in trapping. The place of arrest was in Hardin County. Appellant lived in Tyler County.
There are a number of bills of exception in the record, all of which have received our careful attention.
We discuss the errors complained of in the order in which they are presented in the brief. There are several bills of exception complaining of testimony elicited from appellant on cross-examination relative to his purchase of the still in question in Polk County, to his removal of same to Tyler County where he lived and where he said he concealed the still in some bushes and did not take it to his home; also that he brought the still from Tyler County down into Hardin County, where he was arrested and engaged in the making of the whiskey. Appellant's defense in this case was that he was making whiskey for his use as a medicine. That being the case, we think it entirely permissible for the state to show his purchase of the still, and his concealment of it from his own family or anyone else; also his removal of the still from his home county and bringing it into another county where he set it up at a point quite a distance from the camp which he and his friend were occupying. Such proof was not open to the objection that it was receiving evidence of a separate and distinct offense. Proving one the maker of whiskey necessarily involves in most cases proof of his possession of the still and equipment. When the defense interposed that such making was done under one of the exceptions allowed by the statute, any relative fact rebutting such innocent intent becomes admissible. That testimony material to the development of any case on trial may involve some other offense, is not ground for its rejection.
Appellant complains of the overruling of his application for continuance. The bill shows that the state not only admitted that the witness would testify as stated in the application, but also admitted the testimony would be true. There was no error in overruling the application. *Page 198
There is also a complaint of the fact that the jury lists had been delivered to counsel for the state and appellant and they had interrogated the jurors and marked their jury lists — that the jury were permitted to go to dinner before the lists were read and those jurors who had been selected were sworn. We are unable to perceive any merit in this objection. It is not shown that the lists which had been passed upon were made known to anyone, or that any of the jury panel were approached or in anywise made aware who had been selected. When the jurors came back to the courthouse the jury lists as agreed upon seem to have been called and jurors so selected to try this case. We are unable to agree that the bill presenting this complaint manifests error.
There is a bill of exceptions complaining of bringing the equipment found by the officers in use by appellant, into the court room. No improper use of it in any way is shown.
Bills of exception Nos. 5 to 9, inclusive, present appellant's complaints of testimony relative to the purchase of the still, its concealment, and it being brought by appellant from Tyler County to the county where he was engaged in using same at the time he was arrested. We have discussed this matter above.
Bill No. 10 shows that appellant's wife was used by him to establish the fact that he needed whiskey for medicine, etc. She was asked by the state on cross-examination if she had ever seen the still, which was in evidence, and over objection she was required to say that she had never seen it in her life. This seems in entire consonance with appellant's own testimony — he having sworn that he did not take the still to his house, but concealed it in bushes. We perceive no injury possible from the testimony.
Appellant's son took the stand in his behalf and testified that for several years the health of appellant was poor; that from February, 1926, to the time of this trial in June of said year he had lived with appellant, and that during that time the health of appellant had been "mightly poorly." On cross-examination this witness testified that the family kept a boarding-house and had from twelve to eighteen boarders and were getting along all right. Over objection he stated appellant had always been able to employ doctors and buy medicine when he needed it; also that witness had never bought any whiskey on prescription for appellant; also that witness had always been able and willing to aid appellant in any way, but had never been called on to procure whiskey for appellant or the services of a doctor; also that witness had never seen the still in question at appellant's *Page 199 home. We have given serious consideration to each of these bills and fail to perceive any error that could have affected the rights of the appellant in any of them. If it be true, as witness testified, that his father's health had been poor for a number of years, it would appear not too remote to show that this witness had never been called on to procure the kind of medicine that his father said he needed, and it certainly could not be improper for witness to testify that he was always able, ready and willing to get medicine for his father, nor for him to state that he had never observed this still at his father's house. None of the bills to the reception of testimony show that anything was permitted in evidence which did not have to some extent a bearing upon the questions involved in this case. Appellant seems to have been allowed full latitude in the development of his theory, and we see no reason to complain that the state was allowed a fair latitude in combating the theories of the defense. The evidence overwhelmingly and without contradiction showing that appellant was engaged in the manufacture of liquor, and it appearing that the jury had given him the lowest penalty, we are unable to perceive any room for valid contention that any of the matters referred to were capable of any injury. Appellant had several barrels of mash near where the still was, the testimony showing the mash was ample to make quite a number of gallons of whiskey. Appellant's reason for having the still down in Hardin County, and for not putting it up somewhere reasonably close to his camp, the quantity of mash he had, and the entire testimony seems ample to justify the jury in concluding there was no substance to the claim interposed, namely, that appellant was making the whiskey for medicinal purposes alone.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.