
    SCHARFF et al. v. STATE.
    (No. 8838.)
    (Court of Criminal Appeals of Texas.
    April 8, 1925.)
    1. Intoxicating liquors <&wkey;>236(7, 19) — Evidence . held to sustain conviction of possessing liquor for purpose of sale and for manufacturing liquor.
    Evidence % eld to sustain conviction of one codefendant for possessing intoxicating liquor for purpose of sale, and to sustain conviction of the other defendant for manufacturing liquor.
    2. Criminal law <&wkey;364(4) — Statement made by accused when liquor was found by officer held part of res gestee.
    The question by accused to his wife, when officer found liquor — “Why didn’t you have this stuff poured out before the officers got here? ” would be part of the res gestee.
    3. Criminal law <&wkey;1169(2)— Accused’s testimony that he made statement as testified to by officer removed objection that statement was made while under arrest."
    Where officer, searching for liquor, testified concerning a statement made by deceased when the liquor was found, and accused testified that he made the statement in substance as testified to by officer, accused’s testimony removed the objection that such statement was made while under arrest.
    <&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Grayson County; F. E. Wilcox, Judge.
    E. A. ScharfC was convicted of possessing intoxicating liquor for the purpose of sale, and T. Daniel was convicted of manufacturing liquor, and they appeal.
    Affirmed.
    B. F. Gafford, of Sherman, for appellants.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant ScharfC was adjudged guilty, in the district court of Grayson county, of possessing intoxicating liquor for purposes of sale, and his punishment fixed at one year ip. the penitentiary; appellant Daniel was convicted in said court of manufacturing intoxicating liquor, and his punishment fixed at one year in the penitentiary.

The two appellants were found in a room occupied by Daniel, which was a part of the premises belonging to ScharfC; "the occasion being that of a raid made by officers upon said premises. In Daniel’s room was an oil stove, and in another adjoining room was found a still, and in .various parts of the adjacent house occupied by ScharfC and his family were found considerable quantities of whisky. The men were jointly indicted in an indictment containing two counts — one charging both with the manufacture of liquor, and the other charging both with the possession of such liquor for purposes of sale. Upon their trial the jury rendered a verdict adjudging them guilty as above stated.

In the record appears what is denominated bill of exceptions No. 1 in the case of ScharfC, and a similar bill of exceptions No. 1 in the case of Daniel, which bills set forth that the state elected to ask a conviction against ScharfC on the second count, and against Daniel under the first count, and said bills proceed to assert that the verdict and judgment against each is contrary to the evidence, which is set out in the bill at some length. The bills appear to be taken to the refusal of a new trial to each appellant upon the ground of insufficient testimony. We regret that we cannot agree with appellants’ contention. Both appellants testified on the trial. Daniel was the hired man of ScharfC and occupied a little outhouse about 30 steps from the main dwelling. The raid was made by the officers at night, and both appellants were found in the building occupied by Daniel. There was a partition in said outhouse. The first officer who entered testified that in the room where appellants were was a still, and that at the time of his appearing, while the still was disconnected, it was still warm. Tliere were barrels of stuff deemed to be mash also in tbe outbouse, some of wbicb was also warm. Another state witness testified that the still was first found in a little side room by the one in which the twa appellants were found, and that witness said he had moved it into the room where the men were before the advent of the witness above referred to. This witness testified that the still was warm, and the half barrel of mash found was also warm. The officers had a search warrant and went into the residence of appellant Scharff and found 4 gallon jugs of whisky and more in a half gallon fruit jar. When they first found 2 of the gallon jugs, appellant then said that was all there was. Further search revealed another gallon in a corner of the kitchen under a lot of dirty clothes, and another gallon was found in the halh This witness testified that, when they found the gallon in the hall, appellant said to his wife, “Why didn’t you have this stuff poured out before the officers got in here?” The liquor was corn whisky and intoxicating.

Appellant Daniel testified that on the night in question and shortly before the officers came, some parties came to the house and said they had something they wanted to leave for Mr. Scharff, and that he saw them carry something into the house that looked like jugs. Witness said that one of the parties was a negro named Wortham, and the other was a man called Smith, and that he had never seen-either one of them after that night. He further testified that, in a few minutes after these men came and left something for Mr. Scharff, the latter also came to the house and he was telling Scharff about what these men had left when the officers came in. He said as far as he could tell what tbie men had when they came in, they had three jugs. He also testified that he did not know where the still came from unless these men put it in that little room; that he did not hear them' put any barrel of water into the room, nor did he hear them put a barrel of mash in there: that he. only saw them out in the yard, and saw them set something on the porch; and that he did not pay much attention to what they were doing. Scharff testified, denying any knowledge of the still or barrels of mash, or other paraphernalia, and swore that Daniel was telling him of things being brought to the house by some parties when the officers made their entrance.

In rebuttal, the officers testified that they went up close to the premises of appellants on the night in question, and stopped their car back a distance from the house, and went up near the premises and watched for SO or 40 minutes in order to see what was going on, and that they did not see any parties come to said house, nor did they see the defendant Scharff drive up. Mr. Brinkley testified that he went into the little room where the still, etc., were, and that he saw no means of exit or entrance except through the ¡room occupied by defendant Daniel. Under these circumstances, we find ourselves unable1 to agree with the contention made by appellants in the bills of exception above referred to.

The second bill of exceptions was reserved on behalf of appellant Scharff complaining of the admission of the statement as to what he said to his wife in the hall, which is above quoted. We would have no difficulty in concluding the • statement to be a part of the res gestae of the transaction. Scharff was charged with possessing intoxicating liquor for purposes of sale. The liquor was found in his possession at his house. The statement that he made to his wife, apparently upbraiding her for not pouring the whisky out before the officers got in there, would seem to be res gestae. However, we further observe that appellant, while on the witness stand, .testified himself to the fact that he made the statement in substance as testified to by the officers. In Parker v. State, 91 Tex. Cr. R. 78, 238 S. W. 943, we discussed at some length the proposition that a confession by one who testifies on his own trial that he made the statements theretofore given in evidence against him by officers, the circumstances showing that he was under arrest at the time he made the statements, would be receivable in evidence against him upon the theory that, if he testified that he made the statements himself, this would remove the objectionable feature to its reception when testified to by others as having been made by him while under arrest.

Finding no error in the record, the judgment .will be affirmed.  