
    NANTZ v. STATE.
    (No. 7336.)
    (Court of Criminal Appeals of Texas.
    Feb. 7, 1923.
    On Motion for Rehearing, April 25, 1923.)
    I. Criminal law <&wkey;917(2) — Refusal of continuance for absence of witness whose testimony would not have overturned state’s evidence not ground for new trial.
    The refusal of a continuance for absence of a witness whose testimony would not have contravened or rendered improbable the state’s evidence as to defendant’s guilt held not ground for new trial.
    ,2. Criminal law <&wkey;917(2) — Denial of continuance for absence of nonresident witness who would not be likely to testify as to. facts claimed by defendant held not ground for new trial., ■
    The refusal of an application.for a continuance for the absence of a witness for whom no subpoena had been issued, who was in another state, and who would not be likely to depose as claimed by the defendant that he, and not the defendant, committed the crime, held not ground for new trial.
    3. Criminal law <&wkey;982 — Refusal to submit issue of suspended sentence held not error:
    Where defendant nearly 50 years of age was accused of having manufactured intoxicating liquor subsequent to the passage of the law depriving those more than 25 years of age of the .benefit of suspended sentence when charged with a violation of the liquor law, the refusal of the court to submit to the jury the issue of suspended sentence was not error.
    4. Intoxicating liquors <&wkey;239(2) — Refusal of charge that defendant could not be convicted on proof of his possession of equipment for the manufacture of liquor held not error.
    In a prosecution for the unlawful manufacture of intoxicating liquor, in which the state did not rely on the defendant’s possession of equipment for the manufacture of liquor, except in so far as it was a circumstance corroborative of the testimony of an accomplice tha.t defendant had manufactured liquor, the court’s refusal to charge that defendant could not be convicted on proof of his possession of equipment for the manufacture - of liquor held not error.
    5. Intoxicating liquors <&wkey;2!6 — Indictment charging manufacture of intoxicating liquor held sufficient.
    Indictment describing the offense as the unlawful manufacture of liquor cápable of producing intoxication held sufficient to charge the manufacture of intoxicating liquor.
    6. Criminal law <g=>5l I (I) — Evidence held to sufficiently corroborate accomplice.
    In a prosecution for manufacturing intoxicating liquor, evidence corroborative of accomplice held sufficient to sustain conviction.
    
      On Motion for Rehearing.
    7. Jur^r <&wkey;l03(II) — Acceptance of jurors who-had formed an opinion from conversations . - with witnesses or those who had been in close touch with- witnesses heidi error.
    Acceptance of jurors who had had the purported facts in the case detailed to them by persons-who were either witnesses or had been in close touch with the witnesses, and who had formed an opinion as to the guilt or innocence on the information so acquired, over defend•ant’s protest after he had exhausted his peremptory • challenges, held, reversible error, though the jurors declared that their opinions .did not influence them, notwithstanding Code Or. Proc. 1911, art. 692, giving the court discretion to accept a juror who has formed an opinion from rumors or newspaper reports or editorials where juror declares on his voir dire that the opinion will not influence his verdict.
    Appeal from District Court, Palo Pinto County; J. B. Keith, Judge.
    ." £>. N. Nantz was convicted of manufacturing intoxicating liquor, and he appeals.
    Reversed and remanded.
    Moyers & Creighton and Ritchie & Ran-spot, all of Mineral Wells, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   EATTIMORE, J.

Appellant was convicted in the district court of Palo Pinto county of manufacturing intoxicating liquor, and his' punishment fixed at two years in the .¡penitentiary.

Appellant complains of the refusal of a continuance. The attendance of the wife of appellant was desired as a witness for the defense. The diligence shown is doubtful. The indictment was returned April 13, 1922. A subpoena was issued for said witness April 20, 1922.. It had not been returned when the application for continuance was .made. It is stated that upon reliable information appellant alleges' service of said subpoena Apiil 24, 1922, but, owing to same not having been returned, the subpoena is not attached to the application. It is averred that the witness is ill and unable to attend court, and a certificate of a physician is attached the substance of which is that the physician made a professional call on Mrs. 'Dan Nantz on April 24th, and that she was suffering from a hemorrhage which would render it unsafe for her to take the trip to Palo Pinto town. This certificate does not state sufficient facts to enable the trial judge to appraise the soundness of the statement. There may be hemorrhages from the nose or from any injury which causes a flow of blood.

In passing on the motion for new trial, based in part-on the refusal of the continuance, the question of the materiality of the 'testimony of the absent witness and- the likelihood of the lack of such testimony affecting the verdict of the jury would arise. It is stated in the application for continuance that appellant expected to prove by his wife that for two weeks next preceding the date of the commission of the alleged ■ offense the appellant was not away from his home; also that upon the date alleged in the indictment, or the day before, the wife requested appellant to procure some whisky for her, and he left home at her request with the intention of procuring the whisky. The indictment charges the manufacture of intoxicating liquor on December 80, 1921. The state’s theory as made by its evidence is that on the 29th of December appellant and one Sumerall went to a point in Palo Pinto county where a still was located, for the purpose of manufacturing whisky, and that he was engaged in such manufacture on the 30th of December at a time when certain officers made a raid upon said Still and found him apparently engaged in such manufacture. The state witness Sumerall testified that on December 29th appellant came by where he was and engaged him to go and make whisky, and that the two of them went together to a certain place in -a canyon or hollow, and there found a still apparently ready for operation; that is, there was mash there and the apparatus necessary for the conversion of same into liquor. Said witness swore that he and appellant built a ■ fire under the boiler and put part of said mash in the boiler, and that they then made a run of liquor which he called singlings. He testified that singlings was intoxicating liquor, but that they intended to double it back and run it a second time in order to make it better.' Two officers testified' that on December 30th they raided the still in Soda Springs hollow, and there found intoxicating liquor' in process of manufacture, and that appellant was tasting the contents dripping from the worm of the still at the time said officers made their appearance. They said there were no other persons around said still except appellant and Sum-erall.

As far as we can understand this record, the testimony stated to be that desired from appellant’s wife in no way contravenes or renders improbable the testimony of the witness Sumerall; nor does the testimony of the absent wife defeat the truth of the proposition that on December 30th appellant was engaged-in the manufacture of intoxicating liquor. ■

That a man named Baker, for whom no-subpoena had been issued, but whose testimony was stated in the application as desired by appellant, may have also been present and- concerned -in the manufacture of the-intoxicating liquor in question, would not so-overcome the ¡state’s testimony ás to' mate ■'this conviction contrary to or unsupported by the evidence. That Baker may have been concerned in the manufacture of the liquor, and may have assembled the paraphernalia, .or may have prepared the mash, or have done or been concerned in doing . other things preparatory or incident to the manufacture of such liquor, would not overthrow the' state’s cáse, but the likelihood of obtaining the deposition of Baker, who is stated in the application to be in .Florida, or that Baker would depose and swear that he, and not appellant, was engaged in the manufacture of liquor at said time and place, would'appear to be bf extreme improbability to us. We would not think the trial court to have abused his discretion in the matter of the refusal of the motion for new trial because of the rejection of the application fo.r continuance, under the facts stated in' this record.

Appellant was nearly 50 years of age, and, this offense having occurred subsequent,ly to .the passage of the law depriving those more than 25 years of age of the benefit of suspended sentence when charged with a violation of the liquor law, it was not error for the trial court to refuse to submit to the jury the issue of suspended sentence. This has been decided adversely to appellant a number of times.

Appellant asked that the jury be told that they could not convict him of the charge laid in the instant case upon proof of his possession of equipment for the making of intoxicating liquor. A charge such as this, under the facts in the instant case, .was not called for. The accomplice witness testified for the state that he and appellant manufactured singlings. Witnesses who tasted and examined the singlings testified that it was intoxicating. The state did not rely, therefore, upon the fact of appellant’s possession of equipment for the manufacture of liquor, save in so far as it was a circumstance corroboratve of the testimony of the accomplice.

We think the indictment sufficiently charged a violation of the law. The offense was described therein as the unlawful manufacture of liquor capable of producing intoxication.

The trial court instructed the jury that the witness Sumerall was an accomplice, and that a conviction could not be had upon his testimony unless corroborated by other evidence. In our opinion the testimony of other witnesses amply corroborated that of Mr. Sumerall.

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

On Motion for Rehearing. .

■ MORROW, P. J.

Appellant, in his motion for rehearing, directs attention tP: the .fact ■ that certain bills of exceptions' r&atihjg to the‘action of the court in forcing him to try his case before certain jurors were not discussed. The still with which the state claims the liquor in question was manufactured by the appellant was pointed out to the juror and examined by him.. A number

■ of persons told him the purported facts -and the appellant’s connection therewith..- The juror was unable to state whether the ¡persons to whom-he had talked were witnesses or not. He said that he had not talked to the sheriff or city marshal, but these' > were not all the witnesses used by the state;: One of the jurors testified that the facts .in-.the case had been detailed to him by one who frequented the marshal’s office, and that they had been detailed by other persons whose names he could not recall, but 'he was not able to state with certainty that he had not -talked to the sheriff and the city marshal who were witnesses against the accused.

The object of our statute (article- 692, Code Cr. Proc.) touching the qualification of jurors is to foster the purity of - a trial- by jury. On the subject it has been said by this court: . ' ;

“Oúr Bill of Rights provided that the accused in all criminal prosecutions ‘‘shall‘ have a fair trial by an impartial jury.’ Article 1,'' § 10. This language is of no doubtful significance. The trial shall be ‘fair,’ and the jury ‘impartial.’ ‘Impartial’ means ‘not partial;, nqt favoring one party more than another; unprejudiced; disinterested; equitable;, just. Jove is impartial, and to both .the same.’ Wéb'st. Diet. As thus defined, ‘impartial’ evidently means not favoring a party or an'individual because'of thfe emotions ,of the human mind, heart, or affections. It means that, to be impartial, the party, his cause, or the issues involved in his cause, should not, must not, be prejudiced. The accused in this state, under our Constitution and laws, is entitled to a ‘fair trial by an impartial jury’; and there is no other method provided by which an accused can be tried and punished.” Randle v. State, 34 Tex. Cr. R. 58, 28 S. W. 954.

By the terms of the statute the trial court is given discretion to receive á juror who has formed an opinion from rumors or news-; paper reports or editorials when the juror declares on his voir dire that the opinion will not influence his verdict. The discretion, however, is not given to force the accused to accept a juror who has formed an opinion from a knowledge of the facts involved in the prosecution which has befen obtained from his own observations or from conversations with witnesses. See Quinn v. State, 51 Tex. Cr. R. 156, 101 S. W. 248; Shannon v. State, 34 Tex. Cr. R. 9, 28 S. W. 540; Obenchain v. State, 35 Tex. Cr. R. 492, 34 S. W. 278; Keaton v. State, 40 Tex. Cr. R. 144, 49 S. W. 90; Gallaher v. State, 40 Tex. Cr. R. 307, 50 S. W. 388; Nelson v. State, (Tex. Cr. App.), 58 S. W. 107; Collins v. State, 84 Tex. Cr. R. 228, 206 S. W. 668; Slack v. State, 67 Tex. Cr. R. 460, 140 S. W. 107; Branch’s Ann. Tex. Penal Code, p. 285.

In the Instant case one of the items of evidence was the still, and much attention is given to its description and explanations by the state’s witnesses. It appears from the bill of exceptions that the appellant and the still were brought in to the town of Mineral Wells together and were observed by at least one of the jurors; that both of them had had the purported facts in the case detailed to them by persons who were either witnesses or who had been in close touch with the witnesses; that each of them had formed an opinion touching the guilt or innocence of the appellant on the information thus obtained. It-is true that in the bill, as qualified; they declared that the opinion would not influence them. It is believed, however, that the intimacy of the jurors with the' facts, acquired in the manner described, their failure or refusal to name the persons with whom they had talked, the absence of any evidence upon the motion for new trial combating the fact that their information thus obtained from - witnesses, rendered it improper that the court should force the appellant to try the case before the jurors named over his protest and against his objection after he had exhausted his peremptory challenges, and that in refusing to grant a new trial the court was in error. Entertaining this view, the affirmance heretofore entered is set aside, the motion for rehearing is granted, and the cause is now reversed and remanded. 
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