The appellant was convicted in the Criminal District Court No. 2 of Dallas County for the offense of having equipment in his possession for the manufacturing of intoxicating liquor, and his punishment assessed at one year in the penitentiary.
The record in this case discloses upon the part of the state that when the sheriff and his deputy went to the house of the appellant, that they found a 25-gallon still set up, warm, *Page 310 and some whiskey running or had run out of said still into a ten gallon jar. They also found about 60 gallons of mash in the house and room where the still was located. Said officers testified that they found the appellant in the back yard in a state of intoxication, and when he was asked what he had done with the whiskey, replied that it had been poured out.
It was contended upon the part of the appellant that he found the still in question, and had attempted to install it and make whiskey from the mash found in the house, but his efforts were unsuccessful, and that he had been trying to make it for his own personal use, on account of suffering from lung trouble.
Appellant complains of the action of the court in refusing to submit a charge on circumstantial evidence. Under the facts of this case there was no issue raised authorizing such a charge. The undisputed and positive evidence in the record shows the appellant had the equipment in his possession, and under such facts, it was not error to refuse such a charge. Branch's Ann. P. C., Sec. 1874, p. 1039. Pabst v. State, 259 S.W. 577.
Complaint is made to the remarks of the Assistant District Attorney in his closing argument to the jury, as shown by appellant's bills of exceptions, which are qualified by the court showing that some of the objectionable remarks were withdrawn from the consideration of the jury, and the other remarks complained of were in answer to the argument of the defendant's counsel. As presented and qualified neither of said bills shows any error.
Complaint is also made to the action of the court in permitting the deputy sheriff to testify to the statements of the appellant made at the time of the arrest and the discovery of the still in question, to the effect that the whiskey was thrown out. There was no error in the admission of this testimony, and same comes clearly within the rule of res gestae, as shown by the court's qualification of said bill. Stone v. State, 265 S.W. 900.
Appellant complains of the action of the court in not permitting him to testify the reason why his friend from Alabama furnished the money with which to buy the mash in question if he, the appellant, was able to do so. This bill states that said appellant would have testified that his financial condition would not permit him to take the risk of loss, and that his *Page 311 friend had not convinced him that whiskey could be made with said equipment. This bill as presented shows no error in the rejection of said testimony by the court at the instance of the state.
Objection is also urged to the action of the court in refusing to permit the appellant to testify in his own behalf what a pint of whiskey would cost in Dallas, and what he, appellant, earned per day. We fail to see how the admission of this testimony would throw any light on this case, and are of the opinion that the court properly excluded same.
Appellant complains of the action of the court in permitting the state to ask the sheriff relative to the appellant's offering him $100.00 to say nothing about what he had found, and to the state's cross examining the appellant himself as to said matter; the appellant contends that at the time he was under arrest. The court's qualifications to said bills show when the appellant was being interrogated about it, appellant's counsel did not object on the ground that he was under arrest, and that when the state was interrogating the sheriff relative to it, the appellant's counsel raised the objection that said appellant was then under arrest and the court sustained same, although the court states in his qualification to said bill, "The evidence was part of the res gestae." With the court's qualification to the bill, it is clearly shown that no injury occurred to the appellant, and the appellant's counsel having accepted the bill with the qualification thereon made, became bound by it, as this court has frequently heretofore announced.
After a careful examination of the entire record, and finding no reversible error therein, we are of the opinion that the judgment of the trial court should be in all things affirmed, and it is accordingly so ordered.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.