
    BRASHEAR v. STATE.
    (No. 8757.)
    (Court of Criminal Appeals of Texas.
    May 13, 1925.
    Rehearing Denied Oct. 7, 1925.)
    1. Criminal law <&wkey;4l7(2) — Testimony, as to occurrences at defendant’s house, held properly admitted in prosecution for unlawful manufacture.
    In prosecution for unlawfully manufacturing intoxicating liquors, testimony that, while witnesses were at particular house, a little girl came out and ran to defendant’s house, held properly permitted, in view of court’s qualification showing that immediately after girl entered defendant’s house, defendant ran out the back to barn and came away with a metal coil or worm and started toward field.
    2. Criminal law &wkey;35l (4) — Testimony, as to defendant’s actions, held not objectionable, as relating to time when he was under arrest.
    Testimony that defendant jumped on witness’ back, took his gun from him, leveled it at him, and threatened to kill him, held not improperly admitted, on ground that defendant was under arrest at the time, in view of court’s qualification, showing that defendant had resisted arrest and disarmed witness.
    3. Criminal law &wkey;692 — Party, resisting arrest and disarming officer, cannot he heard to say that he was under arrest or other form of restraint.
    A party refusing to submit to arrest, disarming officer, and forcing him to leave premises, cannot be heard to say that he was under arrest or any other form of restraint.
    4. Criminal law <&wkey;390- — Admitting testimony, as to manner of approach of defendant’s house, held not error, in view of court’s qualification.
    Bill of exceptions complaining of admission of testimony that witnesses in approaching defendant’s premises started in a particular direction down an opening in field, but decided not to go that way, that it was too open, held not to disclose error, in view of court’s qualification, showing objection had been sustained to testimony, as to why witness went a certain way or circled around.
    5. Criminal law &wkey;>339 — Testimony of state’s witness, as to liquor found and identified at trial, held properly admitted.
    In prosecution for unlawful manufacture of intoxicating liquor, testimony that state’s witness went into barn and came out .with fruit jars of whisky, identifying fruit jars on table, as being same, held not improperly admitted, in view of court’s qualification of bill of exception.
    6. Criminal law &wkey;>l 111 (3) — Defendant accepting bill of exceptions, with qualification, is bound thereby.
    Defendant accepting bill of exceptions, with qualification, is bound thereby.
    7. Criminal law &wkey;>472 — Receipt of expert testimony, that liquor could be manufactured with instruments exhibited to witness, held not error.
    Testimony by witness, who had qualified as an expert, that liquor could be manufactured with instruments exhibited to him, held properly admitted.
    Commissioner’s Decision.
    Appeal from District Court, Milam County; 'John Watson, Judge.
    Jim Brashear was convicted of unlawfully manufacturing intoxicating liquors, and he appeals.
    Affirmed.
    Chambers, Wallace & Gillis, of Cameron, for appellant.
    Tom Garrard, State’s A tty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

Appellant was convicted in the district court of Milam county for the offense of manufacturing liquor for the purpose of sale, and his punishment assessed at confinement in the penitentiary for one year.

By bill of exception No. 2, appellant complains of the court’s action in permitting witness Little to testify that after Stevens went into the house a little girl left there, came out of the house and ran, and that they followed her about 250 yards or further, and that she went into another house, and that the other, house belonged to Wesley Stevens and Jim Brashear. The court approved this bill, with the statement that the Bob Stevens referred to was the father of Wesley Stevens with whom the defendant resided, and further that immediately after the little girl ran into the house where defendant lived, the defendant ran out of the back of the house, and went toward the barn, and came away with a metal coil or worm, and started down toward the field, and that witness Little followed and arrested him. Under the court’s statement, this testimony was clearly admissible.

Bill No. 3 complains of the action of the court in permitting witness Little to testify that, after Wesley Stevens came out of the barn, appellant .jumped on witness’ back and took his gun from him and leveled it at the witness’ head, and told the witness, “We are .going to kill you,” the objection to this testimony being that the appellant was under arrest at the time the transaction happened. The court qualifies this bill by saying that the appellant had been under arrest, but the evidence shows they disarmed witness, and required him to leave the premises alone, and the conversation mentioned occurred on the premises of defendant on the same occasion when witness was disarmed and forced to leave without defendant. Under this statement of the court, the defendant cannot claim that he was under arrest. When a party refuges to submit to arrest and disarms the officer and forcfes him to leave the premises and refuses to go with him, he cannot be heard to say that tinder these eon-ditions he is under arrest or any other form of restraint.

By bill No. 4, appellant complains of the court’s action in permitting the witness Rogers to testify that he, in connection with Deputy Kennedy and witness Little, had gone to the residence of Bob Stevens and had afterwards gone over to the defendant’s premises, and that they had started in a hind of east direction, and in a patch down in the field, and that they started up that opening, and decided not to go up that way, it was too open. The court qualifies this bill by stating that he sustained the objection to that part of the testimony which sought to have the witness say why he went a certain way or why he circled around. As explained this bill of exception, shows no error.

Bill No. 5 complains that the court’s action in permitting the witness Kennedy to testify that Rogers "went into the bam and came out with fruit jars of whisky, identifying the fruit jars on the table as being the same jars, was error. The court explains this bill by saying that the matters complained of showed the search of defendant’s premises, and what was found there at the time of the arrest, and this testimony merely proved the physical facts as they existed at the time. Appellant accepted this bill of exception with qualification, and is therefore bound by it, and as qualified by the court, the bill shows no error.

Bill No. 6 complains of the court’s action in permitting the witness Harris to testify that liquor could be-manufactured with the instruments exhibited to said witness. The court qualifies this bill by the statement that the witness was introduced as an expert, and that the evidence was offered under a charge in the indictment concerning the unlawful manufacture of intoxicating liquor. This testimony was admissible.

We have carefully considered appellant’s special charges, and find no error in the court’s action in refusing to give them.

Finding no error in the record, the judgment is affirmed.

PER CURIAM. The foregoing opinion of' the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

BERRY, J.

This case was affirmed at a former term of this court, and is now before us on appellant’s motion for rehearing.

The same question presented in this case has been this day decided by this court incause 8766, Wesley Stevens, v. State, 276 S. W. 228, and on the authority of that case we hold that the court did not err in refusing to sustain appellant’s motion to quash the panel of talesmen summoned to try the case.

There is no material difference between the facts developed on the motion to quash in the Stevens Case and those found in the record in this case, and, under authority of the Stevens Case, appellant’s motion for rehearing herein is in all things overruled. 
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