Appellant was convicted in the District Court of Milam County of the offense of manufacturing liquor, and his punishment fixed at one year in the penitentiary.
Officers went to appellant's residence on October 31, 1921, and found a complete still in process of making liquor. There were three barrels of mash. A copper container with a capacity of twelve gallons *Page 139 was on the stove boiling. The worm leading from the top of this container was disconnected but still hot, and a five gallon keg of whisky was part of the find, also a quart of the same intoxicant. No one was at the house save the wife of appellant and two small children. The officers had a search warrant. When they got in about three hundred yards of appellant's house they saw him in the road. They slowed down and one of the parties spoke to appellant and said, "Get in Jim." The officers knew nothing of what they would find at his house. Appellant said, "Well you have got me." The conversation following, as detailed by the various officers, differed in some particulars. The officer seated next to appellant in the back seat of the car testified that when appellant said, "Well you have got me," witness said, "Why, what are you doing Jim?" and that appellant replied, "Well I am a cooking." Another officer testified that he asked appellant, "What for?" when the latter said they had him, and that appellant replied to him, "What for, making whisky?" The party went to appellant's house and found therein the outfit, the operation, the product, above mentioned.
Various exceptions to the court's charge appear. One was for failure to charge on alibi, and a special charge embodying this phase of the law was presented and refused. There seems to us no need for such charge. Five gallons of the manufactured product were found at appellant's house. Barrels of mash that must have taken time to prepare, were also found. A complete manufacturing outfit was there also. The process of manufacture was proceeding. Appellant was within a few minutes walk of the scene of operation. It was his house. He was the head of the family. He said, "I am a cooking," "You have got me," "What for, making whisky?" The court submitted the law of the circumstantial evidence. The manufacture of intoxicating liquor is not begun or completed in a moment. That appellant was a short distance from his house when seen by the officers that morning, would not suffice to demand an acquittal upon the theory that he was at another and different place when the crime was committed. The fact that he may have been to drive a cow that morning, while the mash was fermenting, or the container cooking, or the worm collecting and dripping its contents, would not demand a charge on alibi. No question seems raised in the record that the factory was his and the manufacture his. Everything that was found bore out his statement to the officers and seem completely to establish his knowledge of and identity with the entire transaction. It hardly seems worth arguing that appellant would or could have said to the officers "I am a cooking," if he had no knowledge of what was going on and if some enemy had slipped into his house in his absence and started the operations upon the customary implements for carrying on the forbidden business. The statute governing the instant case forbids the direct or indirect manufacture of intoxicants, and we would not think it necessary for the proof to show the personal presence of the *Page 140 accused, as an indispensable element to his guilt. The law deals with substance, not with shadows, and in order to entitle him to demand a charge presenting an issue, he must show facts to the court which substantially support the theory that if his personal presence was not shown, he could not be guilty. Polanka v. State, 33 Tex.Crim. Rep.; Parker v. State, 40 Tex. Crim. 121; Underwood v. State, 55 Tex.Crim. Rep.; Hernandez v. State, 64 Tex.Crim. Rep.; Myers v. State, 65 Tex. Crim. 448. The trial court submitted this case to the jury on the theory of principals, and we find in the charge the following:
"You are charged that if another did in fact commit the offense as alleged in the indictment and the defendant did not know the unlawful intent and did not aid by acts or encourage by words or gestures, he would not be a principal; and in the event you have a reasonable doubt thereof, you will acquit him."
And in another part of said charge is the following:
"But unless you do so believe from the evidence, beyond a reasonable doubt, that the defendant either alone or acting with some other person, did in the said State and County on or about the 31st day of October, 1921, either directly or indirectly unlawfully manufacture intoxicating liquor as alleged in the indictment, and as is hereinbefore defined, and not for medicinal, mechanical, scientific or sacramental purposes, and not for any of said purposes, you will acquit the defendant and so say by your verdict."
This gave to the appellant the law the issues raised by the evidence as we view same, and obviated the need for any charge presenting the theory that some person other than appellant was the manufacturer, if any, in the instant case.
Complaint is made of the reception of the statements of appellant as made to the officers, it being urged that he was under arrest and unwarned. We do not think he was under arrest. The officers were going to his house. They had no warrant of arrest for him. They did not know what he had in his home. His statements were entirely voluntary and without inducement or threats. The reception of such evidence might be justified upon the further ground that same amounted to a statement made by him found later to be true and which conduced to establish guilt. As stated above, the officers were ignorant of his commission of crime. The fact of manufacture was unknown, likewise the place. Appellant not only said, "You have got me," and, "I am a cooking," but made the further statement that it was at his house. The cooking was at the house of appellant as was later ascertained and verified. We are not at all sure that the conversation would not also be admissible as res gestae. The cooking of the mash was evidently going on, and it was a part of the process of manufacture. The statements were made by appellant a short distance from the scene and while that much of the manufacture was in actual progress. *Page 141
We think the testimony that the private road leading from the public road to the residence of appellant, showed much evidence of recent travel, was admissible for what it was worth as a circumstance supporting the claim of the State that illicit liquor was being manufactured and sold at appellant's house. This was true of the testimony of witness Sanders that automobiles and other vehicles frequently passed his house in the night-time going in the direction of appellant's home.
We are not impressed that the Dean law as applicable to the manufacture of intoxicating liquor was so changed by the amendment thereto contained in Chapter 61, Acts First Called Session, Thirty-seventh Legislature, p. 233, as to amount to a repeal of the former law and to thereby necessitate the reversal of the conviction of one who manufactured liquor prior to November 15, 1921, same being the date of the taking effect of said amendment. There was no change in the law forbidding the making of intoxicants save the taking out of the definition of the offense the exceptions formerly contained in that section of the statute defining the offense, and the incorporation of such exceptions in a separate section, and the removal of the purchaser of such liquor from the class of those who were made punishable by said Act. This matter was discussed by us in Ex parte Doc Mitchum, 91 Tex.Crim. Rep., 237 S.W. Rep., 936.
Finding no error in the record, the judgment of the trial court will be affirmed.
Affirmed.
ON REHEARING December 20, 1922.