The offense is manufacturing liquor, and the punishment is one year in the penitentiary.
On the trial of the case the appellant testified as a witness in his own behalf and admitted that he was under other indictments for violation of the liquor law. Appellant complains because the court refused to instruct the jury that they could not consider said evidence and charges as a circumstance of guilt. The court in his main charge gave the following instruction:
"In this case, evidence has been admitted before you of other charges against the defendant, you will only consider these as bearing upon his credibility as a witness and not as a circumstance showing his guilt on the charge in this case." *Page 170
This charge was not excepted to.
The charge, as given, more nearly correctly presented the law than did the special charge offered by the defendant and refused by the court.
Appellant criticizes the argument of the district attorney, and while we think the argument was perhaps objectionable, yet the jury saw fit to give the defendant the lowest penalty and the evidence being amply sufficient to support the verdict, we are not led to the conclusion that reversible error is not shown with reference to the argument of the district attorney.
The court correctly refused to give a charge on circumstantial evidence. The State's testimony, if true, was sufficient to show by positive testimony the guilt of the appellant.
Neither was there error in the court's action in permitting the witness Burton to testify concerning the visit of a Mr. Red to the still. The testimony, if true, is sufficient to show that this party was acting with the appellant in violating the law. The witness Burton testified that at the time the party Red visited appellant at the still appellant said that Red lived with his sister and would always notify appellant when anything was coming up or anything was going to be done so they could straighten up.
Bills of exceptions 7, 8, 9, 11 and 12 are in question and answer form and for that reason will not be considered.
In his motion for a new trial appellant complains at the alleged misconduct of the jury. The testimony of the jurors as to the reception of any improper testimony after they had retired to consider their verdict was highly conflicting, and we are of the opinion that the learned trial court did not abuse his discretion in refusing the new trial on account of misconduct of the jury. As above stated, the alleged misconduct was testified to by one or two jurors, but, on the other hand, the State proved by other jurors that no such misconduct occurred. We think that the court was warranted in refusing to believe that any misconduct occurred, and it is also true that the lowest penalty was assessed, and we think no injury could have possibly occurred to the appellant by reason of the alleged misconduct.
Finding no error in the record, the judgment is in all things affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been *Page 171 examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.