The indictment charged that the appellant "did then and there unlawfully and knowingly keep, and was then and there interested in keeping, certain premises, a building, room and place," * * * to be used for the purpose of manufacturing intoxicating liquor. Punishment fixed at confinement in the penitentiary for a period of one year.
The sufficiency of the indictment is challenged upon the ground that it is indefinite in failing to advise whether it was intended to prove that the premises kept was a building, room or other kind of place. The indictment used the language of the statute continued in Art. 588 1/4 00 of the Penal Code. *Page 361
We understand it to be permissible to charge in the same count the several means named in the statute of accomplishing the same result which is penalized under the same penalty. Coney v. State, 2 Texas Crim. App. 62; Moore v. State,37 Tex. Crim. 552; Burt v. State, 38 Tex.Crim. Rep.; Reum v. State, 49 Tex.Crim. Rep.; Pruitt v. State, 53 Tex. Crim. 316; Todd v. State, 89 Tex.Crim. Rep..
It is conceived that the criticism of the present indictment is not sound. The statute, by the same penalty, denounces as an offense, knowingly keeping any premises for the purpose of manufacturing intoxicating liquors, whether the premises be a building, room or place. No reference to the authority has been furnished comdemning the form of the present indictment; and it is believed that it is not subject to the fault mentioned. So far as the writer is aware, we have had but one occasion to discuss an indictment under this statute, and that was in the case of Morris v. State, 93 Tex.Crim. Rep., but that case does not touch the immediate question here under consideration.
The appellant resided on a farm which had formerly been known as the Lindsay Farm. It had been divided. A part of it was owned by a relative of the appellant named Gault. There was a division fence between the Lindsay place and the Gault farm. As we understand the record, the appellant was cultivating a part of the farm belonging to his relative and resided in a separate house which was enclosed by a yard fence. He rented part of the cultivated land. The pasture seems not to have been rented by him. In the pasture or uncultivated part of the land, in a thicket, there was found a still, some mash, and some whiskey in half-gallon jars. Circumstances indicates that the still had been operated there. If we correctly understand the statement of facts, prior to the discovery of the still the premises upon which the still was found, was visited by the witness Yates, who seems to have been acting in the interest of the sheriff of the county. He conversed with the appellant, who led him to a point which the witness as 75 or 100 yards from the Lindsay house. The appellant there pointed out to the witness eight or ten half-gallon fruit jars of whiskey. Brown, who was present, told the appellant that the witness Yates wanted to buy some whiskey. Appellant said that he had plenty and wanted fifteen dollars for it. Yates did not see any barrels or the still. His visit to the premises was made in the night time. On searching the premises soon after the visit of Yates, there was found in the thicket a still and some fruit jars containing whiskey. These were in a thicket variously estimated by the witnesses as being from 125 to 300 yards from the house occupied by the appellant.
J. H. Gault, father of the appellant, testified that the still was not upon the premises with his knowledge or consent. *Page 362
There was some conflict in the evidence touching the nearest house to the still. As we understand the record, the still was found upon the Gault farm and not upon the Lindsay farm. The circumstances are regarded sufficent to identify the appellant with the possession of the premises upon which the still and whiskey were located. His admission to the witness Yates that he had a quantity of whiskey for sale, together with the circumstances touching the locality in which it was found, were such, we think, as warranted the jury in concluding that the apparatus which was afterwards found was that ured in manufacturing the whiskey which the appellant was ready to sell to the witness Yates and which was under his control.
Whether the particular premises upon which the whiskey was located were specifically included in the lease of the appellant would seem not to be conclusive against the State's right to maintain the prosecution under the statute in question.
The statement of Brown to appellant and his reply mentioned above, were relevant as tending to show possession of the product of the still, as well as guilty knowledge of its presence. The bill, as qualified, shows the whiskey at the time of the remarks mentioned was on the premises under the control of the appellant.
There was brought into the court room and exhibited to the jury the still and equipment found upon the premises described, and testimony was received to the effect that the articles were usable for the manufacture of intoxicating liqor. The receipt of this testimony is deemed proper as it was of weight in showing the purposes for which the premises with which the appellant was identified were kept. In Newton's case,94 Tex. Crim. 383, a like procedure was sanctioned by this court.
Deeming the evidence sufficient to support the verdict, and finding no error in the procedure, the judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.