Appellant was convicted in the District Court of Collingsworth County of the offense of manufacturing intoxicating liquor, and his punishment fixed at three years in the penitentiary.
Appellant moved to quash the indictment herein because it failed to negative the exceptions contained in the original Dean Law. By the terms of the amendment to said law enacted by the Thirty-seventh Legislature said exceptions were taken out of the section defining and creating the offense and were placed in a separate section to themselves. This court has since held that an indictment under the present law need not negative said exceptions. Travinio v. State, 92 Tex.Crim. Rep., 242 S.W. Rep. 242. Another contention in said motion to quash, that the indictment should have alleged that the liquor was manufactured for purposes of sale, has been decided by this court contrary to the view of appellant. Stringer v. State, 92 Tex.Crim. Rep., 241 S.W. Rep. 159; Crowley v. State, 92 Tex.Crim. Rep., 242 S.W. Rep. 472.
Appellant while testifying in his own behalf was asked by the State if he had been formerly indicted and convicted for murder. The action of the court in overruling his objection to this question presents no error. Such testimony is admitted as affecting the credibility of the witness. Gass v. State, 56 S.W. Rep. 73.
As we view the case, the refusal of a continuance presents no error. By the absent witnesses appellant states that he expected to show that he had been absent from the county, and that on the day of his arrest that he had been absent from his home and had only returned a short time prior to the arrival upon the scene of the officers who arrested him. In the testimony of appellant himself we find his statement that he had returned to his home some week or ten days prior to the day of his arrest, and that he came back from Oklahoma with John Benson, with whose family appellant was jointly occupying his house at the time of his arrest. The officers found liquor in process of manufacture upon appellant's premises in a dugout within a short distance of appellant's home on the day of said arrest, and the fact that he may have been away from his home for some weeks prior to his return thereto, a week or ten days before the arrest, would not seem to us to be material to his defense.
The sufficiency of the testimony to support the conviction is assailed. Appellant owned land in a prairie section of the State. A two room house, a windmill, a lot enclosed with barbed wire and planks, within which lot was a slat crib and a dugout whose roof was almost if not quite on a level with the surface of the ground, were *Page 516 substantially the improvements on said place as reflected by this record. A party of officers upon some information which does not appear, that something wrong was going on at said place, — went to the premises in an automobile. As they approached the house they were watching the lot. They saw no person. They stopped their car in front of the house, got out and went around the corner of the residence, and started toward the lot. They met John Benson coming from the direction of the dugout and turned him back with them. One of said officers further testified that after meeting Benson he saw appellant come out of said dugout. Others of said officers testified that they saw appellant in the act of getting over the fence which enclosed the lot in which the dugout was situated. Other testimony indicated his moving away in a stooping position. When arrested he was behind the crib apparently attending a call of nature. Investigation of the dugout disclosed that it contained several barrels of mash, a copper boiler in which mash was boiling and bubbling and from which a pipe led through a barrel of water, from the end of which pipe whisky was dripping into a fruit jar. The pipe and boiler were too hot to be handled. No other persons were found on the premises nor in the vicinity of said still except the wife of Benson, who was in bed having recently been confined with child birth, and a Mrs. Brothers who was doing some washing. Without attempting to further analyze the probative force of the testimony above stated, it is our conclusion that it sufficiently supported the verdict of the jury in finding appellant guilty of the manufacture of such intoxicating liquor.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
ON REHEARING. June 6, 1923.