Appellant was convicted in the District Court of Archer County for possessing equipment for the purpose of manufacturing intoxicating liquor, and his punishment fixed at two years in the penitentiary.
There are numerous bills of exception in the record, most of which will be noticed in the opinion. The continuance sought was based on the absence of one Weinzapfel, but the materiality of the testimony of this witness was combated by appellant's own evidence when he took the stand, and the refusal of that part of the application seeking to make an equitable showing manifests no abuse of the discretion of the learned trial judge. The charge against appellant was the possession of equipment for the manufacture of intoxicating liquor, and the testimony of the sheriff as to the contents of the jugs found, and the introduction of the bottles, the still and other equipment before the jury, was not open to the objection made thereto.
The mash, still, whiskey, etc., were found in a cellar under the floor of appellant's house. As far as the record shows no one was on the premises except appellant, his wife, children and the hired man Weinzapfel, who is not claimed by appellant on the trial to have had anything to do with the still, etc. To sustain the conclusion of guilty possession it is not necessary that appellant actually have the still or paraphernalia in his hand, or that anyone so testify. Thomas v. State, 89 Tex. Crim. 609. It was in his house admittedly with his knowledge. There is no suggestion in the record of possession by any other person except as raised by appellant himself or his witness Sullens and this would seem to obviate the need for a charge on circumstantial evidence in a case where the offense charged was the possession of a still. Appellant asked a special charge that if the jury believed there was a still on his *Page 367 premises, yet if same was placed there by one Bush and that appellant did not possess the same for manufacturing liquor, or they had a reasonable doubt thereof, they should acquit. We think all the material part of this special charge was covered by the main charge of the court and the special charge given which are set out below:
Special charge No. 1-A is in substance that if one Bush did operate a still at the house of appellant and on his premises, but appellant did not own the still and did not operate it and did not aid or assist in the operation of same, or they had a reasonable doubt of the fact that he did not so own, operate, aid or assist in the operation of said still, the jury should acquit. This charge was correctly refused, as was special charge No. 2-A, which is in substance that if Bush did place a still under appellant's house in his absence, and that appellant did not own, operate, aid or assist in operating same, the jury should acquit. It is not necessary in any case to the conclusion of guilt of possession that the jury believe that the accused owns the still or that he is the person who operated same. The learned trial judge in his main charge gave the following:
"If you believe that there was a still upon the premises of the defendant about the time and place alleged in the indictment, yet if you further believe that the defendant did not possess the same for manufacturing spirituous, vinous and malt liquors capable of producing intoxication, or if you have a reasonable doubt thereof, then you will find the defendant not guilty."
He also gave the following special charge:
"Gentlemen of the jury, in this case you are instructed that even though the defendant was at home and knew that the still in question was on his place, yet you cannot convict the defendant unless you find and believe from the evidence that the defendant possessed the same for the purpose of manufacturing spirituous, vinous and malt liquors capable of producing intoxication, and if you find and believe that he did not possess the same for such purposes or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict 'not guilty'."
In our opinion the trial court thus pointedly gave to the jury the law applicable to the defensive theory. If one Bush placed the still in appellant's cellar, this would not justify appellant's acquittal, and the submission to the jury of the issue as to whether Bush did place the still in the cellar, as sought by *Page 368 appellant, could but be confusing and would add no force to the defensive theory, which was that appellant did not have
In regard to the limitations in the charge of the testimony in his possession the still mash, etc., found under his house. of extraneous offenses, we seriously doubt if the testimony of what was found under appellant's house in the way of whiskey, mash and the finished product of the still can be considered as proof of extraneous offenses. The possession of the equipment found by the officers at the same time forms the basis of the instant prosecution, and the finding of the other things was but res gestae. However we observe that the learned trial judge in his charge told the jury that the specific charge against appellant was the possession of a still for the manufacture of intoxicating liquor, and that he could not be convicted of any offense except that, and that the evidence of finding sugar, bottles, liquid, etc., could only be considered by the jury as tending to show, if they did so show, that appellant possessed said still for said purpose. We think this was correct. We are not in accord with the proposition that the evidence was not sufficient to support the conclusion of guilt. Appellant's attempt to ascribe the possession of a still to one Bush, seems another case where one charged with crime seeks to lay same upon a mysterious stranger. No one testifies to ever having seen Bush in the neighborhood, or to have known or heard of his except appellant. Appellant's hired man Weinzapfel, who had worked for him for eighteen months up to and including and subsequent to the time of this arrest, had gone for some reason and was in Indiana when this case was tried. Appellant's wife did not appear and tell anything regarding Bush, the still, its possession, etc. No application for continuance was asked because of her absence. It was asserted by appellant on the witness stand that she was at home with a child that was not well. None of appellant's neighbors gave testimony regarding Bush. The only witness in the record beside appellant who gave any testimony that might suggest the presence of a stranger, was one Sullens who said he was a truck salesman of oils, etc., and that during November he sold oil three times to a large light-complected, grey-haired man at appellant's house. Sullens said he did not know the man but the man told him that he was making whiskey. It might seem strange that a man violating the law would thus confide in one whom he did not know. The state impeached this witness by proving by the district attorney and his assistant *Page 369 that in a conversation with Sullens the latter told them that he sold oil to a tall, dark-complected man at appellant's house, and that he had made ten or twelve sales of oil to this man, extending over a period of about a year, and that on some of the occasions appellant was present.
Appellant in his own behalf testified that Weinzapfel had worked for him for eighteen months, but that in November, between the 5th and 10th, he hired a man named Bush, the inference from his testimony being that Bush was hired to help harvest the feed crop. For some reason not disclosed by the record, appellant said that three or four days after hiring Bush he went down to Cooke county, where he stayed about ten days, and when he reached home some time between the 20th and 28th Bush told him he was making whiskey on a still under appellant's house. He said that he told Bush he could not do that and paid him off and discharged him. He also said that he had not seen Bush since the day of the arrest in this case and did not know where he was or what had become of him. On cross-examination appellant admitted that he was in his cellar and saw the still, mash, etc., about a week before the date of his arrest. The officers testified that they went to appellant's house about daylight on November 28th and that he had a fire burning but did not have all of his clothes on. That after warming they searched the premises and found in a cellar under the floor some six barrels of one kind of mash and one barrel of another kind and quite a quantity of whiskey, some of which was in a jug under the end of the coil. The still was warm and the jug under the end of the coil and its contents were also warm, notwithstanding it was cool weather. Without objection it was shown that appellant made no claim or statement to the officers regarding Bush, or that any one else had anything to do with the paraphernalia. The officers did not see any man named Bush but did take appellant and his hired man' Weinzapfel back to town with them. In addition to the above, we observe that while giving testimony in the case on cross-examination, appellant was handed an application made by him for continuance on the day of the beginning of this trial. It was sworn to by him. In same it was shown that he was asking for a continuance because of the absence of Weinzapfel, stated therein to be in Indiana, and that his location and address had but recently been discovered by appellant after much correspondence and effort, and that if the case could be continued until a subsequent term, *Page 370 Weinzapfel's presence or depositions could be procured, and he would testify that he was operating the still found by the officers and appellant had nothing to do with it. When confronted with this application appellant stated that the name Weinzapfel was inserted in the application by mistake and that it should have referred to Bush, but he could not explain how the application stated that he had located the absent witness in Indiana by letters and correspondence, if same referred to Bush.
We are of opinion that the jury were warranted in concluding that the story of appellant was not true, and in finding him guilty.
The judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.