
    CRAMER v. STATE.
    (No. 7204.)
    (Court of Criminal Appeals of Texas.
    Nov. 22, 1922.
    State’s Rehearing Denied Jan. 10, 1923.)
    1. Intoxicating liquors <©=>236(5) — Evidence insufficient to sustain'conviction tor unlawful • manufacture of liquor.
    In a prosecution for the unlawful manufacture of intoxicating liquor, evidence as to the finding in defendant’s possession of certain articles which might have been assembled into a still and used in manufacturing intoxicating liquor, held insufficient to sustain conviction.
    2. Criminal law <@=>318 — Where evidence is available to the state, inferences cannot be drawn from such omitted evidence against accused.
    In a prosecution for the unlawful manufacture of intoxicating liquor, where certain articles which might have been assembled into a still and used in the manufacture of liquor were found in defendant’s possession, but there was no evidence as to whether there were any means of boiling, heating, or condensing, or if said so-called mash found were capable of making intoxicating liquor, or if the articles found in jugs were spirituous liquors such as might have been made out of the mash, and it 'was within the power of the state to establish such facts at the trial, inferences could not be drawn from the absence of such evidence against accused in order to sustain the conviction.
    On State’s Motion for Rehearing.
    3. Criminal law <©=>561 (2) — Defendant charged with violation of liquor laws held entitled to same reasonable quantum of proof as one charged with any other felony.
    Since the prosecution of one for a violation of the liquor laws is a felony, conviction for which entails confinement in the penitentiary, 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 felony.
    Appeal from District Court, Brazos County; W. C. Davis, Judge.
    Wesley Cramer was convicted of the unlawful manufacture of intoxicating liquor, and he appeals.
    Reversed and remanded.
    Lamar Bethea, of Bryan, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for the unlawful manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of two years.

Prom the state’s evidence it appears that under a search warrant the premises of the appellant were examined and there was found a can, some pipe, some jugs, two or three little barrels of mash, a trough, some bottles, and different other things. “There was something in the jug.” These were exhibited to the jury. The mash was made of water, syrup, and meal.

It was shown that some time pripr to the search appellant brought a can which the witness described as a “slop can” and had a little piece soldered on the top of it. This can was identified as one of the articles found under the search warrant. At the time the can was repaired or the piece soldered on it, the witness asked the appellant if he intended to make whisky. To this he made no reply. One witness testified that he tasted some of the articles in the jugs and that in his opinion, it was capable of producing intoxication. He did not swallow any of it but took a little inside his lips and then spit it out. It had the taste of whisky.

We regard the evidence as inadequate to support the conviction. It may be that the articles which were found in the possession of the appellant were such as' might have been assembled into a still and used for the purpose of manufacturing intoxicating liquors. There was no testimony, however, to this effect. There is no suggestion in the record that they were assembled in a manner that would fit them for the manufacture of liquor. Each of the articles mentioned in the testimony might have been used for an innocent purpose. There was a can described by the tinner as a “slop can.” It was brought to Ore tinshop and a little piece was soldered on top of it. There was no further description of this can. There was a pipe and trough. Neither was further described. There were three little barrels of mash. Whether the contents of the jugs were made of this mash or might have been made of it is not revealed. The quantity of the article found in the jugs is not given. It is not even stated whether it was fluid or not.

The state relies on circumstantial evidence alone. If the articles found were capable of being assembled into a still or were assembled into a still; if there were any means of boiling, heating, or condensing; if the so-called mash was capable of making intoxicating liquor; if the articles in the jugs were spirituous liquors such as might have been made of the mash, the evidence to establish these facts was at the command of the state. Inferences from the absence of evidence which is available to the state are not to be drawn against the accused in a criminal ’case. Walker v. State, 83 Tex. Cr. R. 490, 204 S. W. 227; Taylor v. State, 87 Tex. Cr. R. 337, 221 S. W. 611. Not having introduced evidence that was manifestly available to show that the articles which were susceptible of an innocent use were in fact so assembled and connected as to overcome the presumption of innocence and the evidence being otherwise subject to the weaknesses pointed out, we are constrained to liold that the trial court was in error in refusing to grant a new trial. On similar facts, see Williams v. State, 88 Tex. Or. R. 402, 227 S. W. 316; Hardaway y. State, 90 Tex. Cr. R. 485, 236 S. W. 467.

The judgment is reversed, and the cause remanded.

On State’s Motion for Rehearing.

LATTIMORE, J.

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 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. Mi. Covey testified that Jahn worked for him, and that he saw appellant at his place in December with a can which he wanted Jahn 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 he 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 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 ypith 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. 
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