
    HENDLEY v. STATE.
    (No. 7100.)
    (Court of Criminal Appeals of Texas.
    March 7, 1923.
    Rehearing Denied April 25, 1923.)
    1. Criminal law <©=>464 — Permitting witness to taste liquor found and to testify that it was intoxicating held proper.
    In a prosecution for manufacturing spirituous liquor, it was not error to permit a witness in the presence of the jury to taste the liquor found in defendant’s possession and to testify that it was intoxicating.
    2. Criminal law <©=>l 173(2) — Refusal to charge that filing of application for suspended sentence shouldi not be considered as evidence of guilt held not prejudicial error.
    In a prosecution for manufacturing spirituous and vinous liquor, it was not prejudicial error to refuse a special charge instructing the jury that the filing of an application for suspended sentence should not be considered as evidence of guilt, defendant having admitted his guilt at the time of arrest and again in a written confession,, and having declined to deny guilt when upon the witness stand; the evidence not raising any issue on such a point.
    3. Intoxicating liquors <©=>134, 236(13) — Evidence held to show malting of “spirituous liquor,” and not malt liquor.
    In a prosecution for the- manufacture of spirituous and vinous liquor capable of producing intoxication, where it appeared that the officers found in defendant’s possession a 50-gallon barrel half full of mash, two gallons of corn whisky, and a.five-gallon copper still and worm, defendant testifying that he made the whisky on the still from corn meal, yeast, water, and sugar, held, that the liquor was not malt liquor, but was spirituous, which is liquor made by the process of distillation.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Spirituous Liquors.]
    Appeal from District Court, Coleman County ; J. O. Woodward, Judge.
    James Hendley was convicted of manufacturing spirituous and vinous liquor, and he appeals.
    Affirmed.
    Baker & Weatherred, of Coleman, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Appellant and Dan Cotton were charged in separate indictments with the manufacture of spirituous and vinous liquor capable of producing intoxication. The offense is alleged to have been committed about December 1, 1921. Upon conviction appellant’s punishment was fixed at one year and six months’ confinement in the penitentiary.

Motion to quash the indictment contained four grounds: (a) That it failed to negative the exceptions; (b) that it failed to allege the manufacture was for sale; (c) that it did not allege the liquor was for personal use; (d) that the law under which it was drawn was in conflict with the Volstead Act (41 Stat. 305). All these questions have been settled adversely to appellant’s contentions so positively and frequently we deem it unnecessary to again cite the authorities.

Appellant and Cotton were negroes who lived on a farm owned by John Pearce. He and the constable went to the house where they lived, and in a cellar recently dug found a 50-gallon barrel half full of mash, two gallons of corn whisky, and a five-gallon copper still and worm. Both negroes admitted to the officers that the apparatus belonged to them, and that they had made the whisky on the still from corn meal, yeast, water, and sugar. These statements to the officer were admitted without objection.

A confession in writing from appellant, Hendley, was introduced in evidence. Objections were made that it showed no warning as required by law. An inspection of the confession fails to bear out the objection. It shows upon its face the proper warning. Appellant testified, but made no issue on the question.

No error occurred in the court permitting a witness in the presence of the jury to taste the liquor found by the officer, and to testify that same was intoxicating. The cases cited by appellant, Dane v. State, 36 Tex. Cr. R. 87, 35 S. W. 661, and Brown v. State (Tex. Cr. App.) 242 S. W. 218, do not support his assignment. In each of them the jurors were permitted to taste the liquor.

Appellant filed an application for suspended sentence, which issue was properly submitted to the jury. The refusal of a special charge instructing them that the filing of the application should not be considered as any evidence of guilt is assigned as error. Such charge is appropriate under certain circumstances (Campbell v. State, 84 Tex. Cr. R. 89, 206 S. W. 348; Hughes v. State, 78 Tex. Cr. R. 154, 180 S. W. 259), but we know of no authority holding its refusal to call for a reversal under facts similar to those presented in the instant record. Appellant admitted his guilt to the officer at the time of arrest, and again, in a written confession, and declined to deny the guilt when upon the witness stand: There was no issue raised by the evidence upon that point, and we fail to discover how under such conditions the refusal of the charge could have In any way been hurtful.

Appellant raised the question that the liquor was not spirituous or vinous, but asserts the same was malt liquor, and therefore that the allegation in the indictment is not supported. The evidence leaves no doubt as to how the liquor was manufactured, nor as to the materials used therein. We quote from Black on Intoxicating Liquors, c. 1, § 6:

“This term [malt liquors], it is said, embraces porter, ale, beer, and the like, which are the result or products of a process by which grain, usually barley, is steeped in water to the point of germination, the 'starch of the grain being converted into saccharine matter, which is kiln dried, then mixed with hops, and by a further process of brewing made into a beverage.”

Examination of previous sections of the same chapter shows that “spirituous liquor” is that made by the process of distillation. The liquor in question here was distilled liquor; hence there is no merit in the contention made.

We have considered the objections to the charge of the court, and the complaints at refusal of special charges presented in bills of exception Nos. 4, 5, 7, 8, 9, and 10, and find no error.

The judgment is affirmed.

On Motion for Rehearing.

MORROW, P. J.

The liquor is thus described, “spirituous and vinous liquors capable of producing intoxication.” If the proof had shown that the liquor in question was malt liquor, or had failed to show that it was spirituous liquor, a different question would be presented, but the facts are sufficient to sustain the finding that the liquor was spirituous liquor.

No new questions are found in the motion. Our review of the record leaves us of the opinion that the proper disposition was made of the case in the original opinion.

The motion is overruled. 
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