Conviction for manufacturing intoxicating liquor, punishment one year in the penitentiary.
An old house stood in a field belonging to one Garrison. Appellant had no right of occupance or control over said house. Mr. Mayfield had charge of Mr. Garrison's place. Appellant and G. C. Ross met Mayfield one day and told him they were going to make corn whiskey in that house. In some way the sheriff got wind of the matter, and about the 10th of December, 1926, in company with two other men, went to said house. He approached the house from the north. When near the door he fired a couple of shots with a shotgun into the door. He then went into the house and found no one in same. A still in the house was running in full blast manufacturing whiskey. Bottles, mash, a fully equipped still with a fire under it, charcoal, wood, a cooling barrel and about eight barrels of mash were in the house. At a south window the sheriff observed tracks of two different people. The officers said that the parties had jumped out of the window. The tracks were large tracks. Jim Powdrill testified that on the morning of the raid he saw appellant and Ross go to the old house in question. They remained until the sheriff approached the house. He saw appellant and Ross jump out of the window. He said they went out of the window when the gun fired, and ran away. In this condition of the record we are not inclined to attach much importance to appellant's complaint at the refusal of the trial court to submit the case upon the law of circumstantial evidence. While no witness actually saw appellant put the mash in the still, or light the fire under it, or take the whiskey from under the worm, still when witnesses testify that one is seen to go into a room and remain several hours and then, at the approach of another party, comes out of said room, and the other party entering finds whiskey in process of manufacture, this is certainly such a complete exemplification of the rule of juxtaposition as to amount to direct evidence.
In his brief appellant complains that Mr. Mayfield was permitted to testify that he made a statement to Mr. Garrison about "those boys making whiskey." The court qualified the bill by setting out in question and answer form what the record shows *Page 625 in regard to this testimony. It appears that witness Mayfield was asked the question: "Did you make any statement to Mr. Frank Garrison about those boys making whiskey?" to which the witness answered "Yes, sir." It appears from the qualification that the only objection made to this was that it was "not in their presence." Witness was asked to relate what he told to Mr. Garrison, and the court sustained an objection to this. So the matter was not gone into. There is nothing in the bill of exceptions except the merest inference to show who were meant by the expression "those boys." We cannot supply by inference something which is necessary to give vitality to an objection. We have no means of knowing from the bill what was said in the conversation because the court sustained the objection to it.
We find nothing in appellant's objection to the testimony of the officer as to the tracks. The sheriff did not attempt to say the tracks were those of appellant and Ross, or that they resembled the tracks of appellant and Ross. He merely testified to seeing tracks which indicated that the makers thereof had jumped out of the window. In view of the testimony of Powdrill that he saw appellant and Ross come out of the window, the testimony seemed material, and we deem it competent.
Appellant has a bill of exceptions to the refusal of the court to instruct the jury, in so many words, that the witness Young was an accomplice. Young was introduced as a witness on behalf of appellant, but on cross-examination the state elicited from him the fact that on the day before the raid in question he carried a quantity of sugar and meal to said old house at the request of appellant and Ross. We would have much doubt as to the proposition that this made Young an accomplice to the manufacture of whiskey taking place the day after the meal and sugar were carried to the house. The officers found a still in operation, mash boiling and liquor running out at the worm. The fact that Young carried sugar and meal to the house the day before this discovery by the officers would make it altogether improbable that the meal and sugar so carried by Young had been converted into mash and were being manufactured into whiskey at the time the officers discovered the still. Many decisions are cited by Mr. Branch in Sec. 712 of his Ann. P. C. holding it proper to submit to the jury the question as to whether a given witness is an accomplice, when that issue is at all in doubt. This course was followed by the learned trial *Page 626 judge. We deem his submission of the issue to the jury proper under the facts of this case.
Being unable to agree with the contentions made by appellant, and finding no error in the record, the judgment is affirmed.
Affirmed.
Morrow, P. J., not sitting.