The State has filed a motion for rehearing insisting that the evidence is sufficient to support the verdict. The written motion was supported by an able oral argument by the county attorney of Brazos County. We have again carefully examined the record and considered each bit of the testimony. It is very short. The sheriff testified that on the occasion in question he went to appellant's house and there found a can, some, pipe, a jug, three little barrels of mash and a trough. Mr. Martin testified that he went with the sheriff and that they found on appellant's premises this can, some pipe, a trough and a jug. Mr. Harvey testified that he went with the *Page 229 sheriff and that they found a trough, a pipe, some mash, a jug, a boiler and some bottles. Mr. Jahn testified that prior to his arrest appellant brought him a can and wanted him to solder a little piece on the top of it, which he did. Mr. Covey testified that Jahn worked for him, and that he saw appellant at his place in December with a can which he wanted John to do some work on; that he asked appellant if he was going to make whisky with the can and the appellant made no reply. That the next week he heard that appellant was caught. This witness tasted the contents of the jug found on appellant's premises and said it was intoxicating.
We have reproduced the testimony above. No witness testified that the articles in question could be put together or that they were in any way joined or connected, or that all or part of them could be used for the manufacture of intoxicating liquor. No witness testified that there was any odor of whisky about the pipe, the can, the trough or any other of said apparatus except the jug. Nothing was said about the condition of the mash that was found. If there had been any fire under the can or same exhibited any evidences of that fact, it does not appear in the record. What kind of top Mr. Jahn put on the can is not in evidence, whether it had a hole in it or whether it was such as a pipe could be fitted to it; whether the trough in question gave evidence of having been used for any purpose, and if so, what. It is argued that some things must be left to a jury. This is true, but enough must be put into a record to enable this court to at least say that a case was made out. A jug of some kind of liquor might be found upon the person of one charged with transporting intoxicating liquor. This jug might be had in the presence of the jury upon such trial and the jurors might taste the contents of it and know from its taste and appearance that it was intoxicating, and might thereupon find such accused guilty; but unless there appear in the record on appeal the testimony of some witness to the fact that such liquor was intoxicating, this court would have no option but to reverse.
In the instant case the State had easily within its power testimony as to the odor, if any, of the pipe, the trough, the can; might easily have shown what kind of a top was soldered upon the can and whether it in conjunction with the pipe, etc., was capable of manufacturing intoxicating liquor. It might have been shown that the can in question was such as could be used or that it had upon it evidence of having been used for the purpose of boiling off its contents. None of these facts appear in the record. It is evident that appellant had gotten the can a very short time before his arrest. Mr. Covey said it was a week before. In the condition of this record appellant's possession of the mash appeared to be the only circumstance pointing toward his purpose in having the things testified about. The presence of this mash would indicate that it was contemplated that it should be *Page 230 used for some purpose, but unless there be other evidence showing that this purpose had materialized prior to the time he was arrested, and that such purpose was illegal, the evidence would not be sufficient. The prosecution of one for a violation of the liquor laws is a felony, conviction for which entails confinement in the penitentiary, and one charged with such offense is entitled to the same reasonable quantum of proof as one charged with any other felony, and as much care should be exercised in making out the case as when there is a charge of any other kind of felony. It is easily possible that upon another trial the State may make out its case from the testimony which it must have in its possession.
The State's motion for rehearing is overruled.
Overruled.