Conviction in District Court of Rains County for possessing a still and equipment for the manufacture of intoxicating liquor, punishment two years in the penitentiary.
Appellant was found in possession of two stills, according to the undisputed testimony of the state, one a copper still, the other made of tin; also he had a copper coil or worm and a barrel with four or five gallons of sour meal and a small quantity of beer in it. At his well was a keg capable of holding twelve or fifteen gallons. It was in testimony that by making a hole in this keg and connecting the coil with the still and filling the keg with water, the equipment would be sufficient to make intoxicating liquor. We do not regard it as necessary to make out this offense that the state proved the accused in possession of a still and equipment sufficient to make intoxicating liquor. The statute, Art. 666, 1925 P. C., penalizes any person who possesses equipment, still, etc., for manufacturing any liquor capable of producing intoxication, or any intoxicant whatever, etc. We think it only necessary that the state show beyond a reasonable doubt that the accused was in possession of equipment for manufacturing intoxicating liquor. Art. 671, 1925 P. C. provides that wherever possession, etc., * * * * is made unlawful by law, proof of possession of mash or a still or any device for manufacturing intoxicating liquor, etc., shall be prima facie evidence of guilt; but the defendant shall have the right to introduce evidence showing the legality of such possession. *Page 283
Under this statute we think it the law that where one is found in possession of a complete still or of equipment less than a complete still which the jury believe is possessed for manufacturing intoxicating liquor, this makes out the prima facie case of guilt. Thomas v. State, 89 Tex.Crim. Rep.; Banks v. State, 88 Tex.Crim. Rep.. In this case appellant claimed that he had the equipment by virtue of his purchase from one Scott who had been convicted for manufacturing intoxicating liquor and was in the penitentiary at the time of this trial; that he bought it from Scott for the purpose of selling it as junk. The court told the jury in the charge that even though they found appellant was in possession of a still or equipment for the manufacture of intoxicating liquor, yet unless they believed that he had same for the purpose of manufacturing intoxicating liquor, they should acquit him.
We think appellant's complaint directed at the form of the indictment without merit. The indictment charged that appellant "did then and there unlawfully possess certain still and equipment for the manufacture of spirituous, vinous and malt liquors capable of producing intoxication." This is sufficient.
Appellant has a complaint at the refusal of an application for continuance. He was arrested on the 23rd of December, and the case was set down for trial December 31st; no application for process for any of the witnesses was made until the day of trial. This was not sufficient.
There is a bill of exceptions complaining of alleged misconduct of the jury. It is made to appear that on the first ballot the jury agreed that he was guilty, but indulged in some argument as to the penalty. The argument as to whether his children would be better off with or without him and that he might have been making whiskey around there for several years, would not seem to us to amount to the introduction of new evidence. The jury was necessarily compelled to express their individual views in discussing their advocacy of guilty or not guilty or the penalty they think should be assessed. We think no new evidence was brought out in the discussion, and that the matter does not amount to misconduct.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.