Conviction was had in District Court of Hardin County for the unlawful possession of equipment for the manufacture of intoxicating liquor; punishment fixed at one year in the penitentiary.
Two officers testified that they saw appellant on what was called Deserters' Island at a place where the woods were very thick. They had found three barrels of mash and near same indications that fires had been made and apparently whiskey "cooked off." From the looks of the mash they decided same would be ready for cooking the following Monday or Tuesday. On Monday they went back and watched the location. About daylight on Tuesday they heard two gunshots, the sound coming from different directions, but fired pretty close together. Presently two men appeared about five minutes apart, one of whom they said was appellant. Appellant had with him a still. The officers further said they wanted to watch until the parties got the still in operation. They testified that a little later they could hear some one working "down there," and they walked down, and appellant was coming from the direction of the mash barrels with two buckets of mash; that he set same down and started to pour one into the still when one of the officers told him to stick up his hands. The still was thirty or forty feet from where the barrels of mash were located. One of them asked appellant where his partner was and he replied, pointing, "that can is the only partner I have." The officers further testified that they proceeded to break up the various articles and as they were about to break a container of peculiar pattern appellant asked them not to break it, as it had been given to him by his wife's grandmother. The still Was about one-third full of mash, and, according to the state's testimony, showed to have been recently used. Appellant testified and denied having taken the still to the place; also denied having the buckets of mash in his hands, and said that he found said still while squirrel hunting. He also said he did not tell the officers that the container in question belonged to him, and also said he did not tell them that the can was his only partner.
Bills of exception Nos. 1 and 2 complain of the refusal of special charges, neither of which was correct. Both sought to have the jury told that they should acquit if they believed that the still in question was placed where it was found by parties *Page 613 other than appellant, or if they had a reasonable doubt of such fact, they should acquit. There is no testimony showing that any other parties had ever been seen around said still, or had any connection therewith, or that other parties placed it where found, save appellant's denial that he put same there. The fact that other men had been camped on said island for some weeks and that they left about the time of appellant's arrest, was shown by the defensive testimony, but seems of no weight supporting the proposition above advanced. There was nothing calling for the submission of such theory of acquittal under the positive testimony of the officers that the still was not at or near the mash barrels when same was first found by them, and further that on the morning of his arrest appellant was at the still and engaged in carrying mash from said barrels to the still and of pouring same into the still when they arrested him. The question as to who put the still where it was would seem in no sense determinative of appellant's guilt.
The statements made by appellant to the officers relative to the can and container seem clearly part of the res gestae.
The testimony of defense witness Clark as to what was said to him by two parties whom he saw in the woods at or about the time in question, was hearsay and inadmissible. Freeman v. State, 249 S.W. Rep. 466; Culver v. State, 249 S.W. Rep. 853; Stone vs. State, 98 Tex.Crim. Rep.; Bates v. State,99 Tex. Crim. 647.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.