Appellant was convicted in the District Court of Freestone County of manufacturing intoxicating liquor, and his punishment fixed at one year in the penitentiary.
There are many bills of exception in the record which present objections to the same proceedings apparently from what appears to the appellant to be different angles. These matters will be treated by us in conjunction.
A searching party including officers went to appellant's premises on the night in question and watched same for some time. They finally saw a car drive up to appellant's house and remain for a period of time estimated at something less than half an hour. Various parties were seen in and around the car and going from it to where a still was subsequently discovered, and it was in testimony that one of the parties was identified by his voice as appellant. When the car finally left the house it was stopped by the searching party about seventy-five or one hundred yards away and in it were two negroes and a demijohn containing several gallons of whisky. Upon going to the house a still was found in appellant's smokehouse situated some three feet from the residence, said still being in operation. Appellant and his wife were not at the house but appellant was shortly thereafter arrested. The car belonged to appellant. Both the negroes who were in it appear to have been convicted for transporting intoxicating liquor but the sentence of each was suspended. Both of them were used as witnesses against appellant.
By a bill of exceptions complaint is made of the court's refusal to sustain the motion to quash the indictment based upon the fact that one Hood was one of the jury commissioners that drew the grand jury which returned the indictment and that said Hood was not a qualified juror nor citizen of the county, nor a freeholder therein. The court heard testimony upon the issues raised by the motion to quash, which testimony appears in the record and from which we conclude no error was committed in holding Mr. Hood to be a qualified juror and a citizen of the county. On the proposition that not being a freeholder would suffice to cause a quashing of the indictment, we conclude that Whittle v. State, 43 Tex.Crim. Rep., settles the matter adversely to appellant's contention. We do not think the fact that another of the jury commissioners had served in a similar capacity in October, 1922 would render him incompetent to *Page 14 be a jury commissioner in April, 1923. There is nothing in the statute which seems to forbid that one should serve as jury commissioner twice within a twelve months period, and in our opinion the service in October of one calendar year would not forbid another service during the early part of the succeeding calendar year. The statute, Article 5123, Vernon's Complete Statutes, intends to prevent the acting twice by the same commissioner during a calendar year. See Words and Phrases under "year". Article 5504 of said statutes expressly says the word "year" shall be taken to mean calendar year. The contention that the list of grand jurors was not signed by the commissioners, nor returned and filed with the clerk and therefore the grand jury sould be quashed, does not seem to us to present merit in view of the fact that it was in testimony beyond dispute that the list of grand jurors so drawn and returned was in fact the one from which the grand jury that found the indictment in the instant case was drawn.
From another bill of exceptions and the qualification appended thereto by the learned trial judge, we learn that appellant made a motion to quash the jury panel for the fourth week which was sustained, whereupon the court directed the sheriff to summon thirty-six men to serve as a jury for the week. The objection to the service of said panel seems to be presented in said bill. Our statutes direct that if the jurors regularly drawn be disqualified or discharged or fail to appear from any cause and there be no jury, that the trial court shall proceed as was done by the judge in this particular instance. We think appellant cannot complain.
A large number of bills complain of that part of the charge which told the jury that they should convict if they believe beyond a reasonable doubt that the appellant "directly or indirectly" manufactured the liquor in question; also of that part of the charge wherein was submitted the proposition that if appellant either alone or in connection with any other person or persons, made said liquor, he should be found guilty. We see no good purpose that would be served by setting out at length the particular objections that were urged in the various bills of exception to the parts of the charge referred to. In our opinion the submission of the case to the jury in the form mentioned was justified by the facts and by the law. It is provided in what is known as the Dean Law that any person who either directly or indirectly manufactures, etc. intoxicating liquor, shall be deemed guilty, and there can be no question raised of the correctness, when supported by proper testimony, of the submission to the jury of the law of principals. We have stated enough of the evidence above to show that the question might be in the case as to whether appellant or some other member of his family with his knowledge manufactured the liquor. This would seem to make proper the submission *Page 15 to the jury the question of whether he made it directly or indirectly, and also of whether he acted either alone or in connection with some other person in the making of the liquor. We do not see how the submission of either proposition places an unnecessary burden upon the appellant, nor how it can be said that a conviction could be secured upon less evidence than if the charge was different.
Objection to the testifying of the two negroes found in the car by the searching party, upon the ground that they had been convicted of felonies, would not seem tenable in view of the fact that the sentence of each had been suspended.
We have carefully examined the charge of the court on circumstantial evidence as well as the special charge asked upon that issue and do not believe the charge open to the exception directed at it, nor that there is such difference between its verbiage and that of the special charge as to require the giving of the latter.
In our opinion the appellant has received a fair trial and that no error was committed that could in any way prejudice his case, and the judgment will be affirmed.
Affirmed.