
    BENSON v. STATE.
    (No. 7291.)
    (Court of Criminal Appeals of Texas.
    Jan. 31, 1923.
    Rehearing Denied June 6, 1923.)
    I. Intoxicating liquors <®=236( 19)— Evidence hold sufficient to sustain conviction for unlawful manufacture.
    In a prosecution for the unlawful manufacture of intoxicating liquor, evidence held sufficient to sustain conviction.
    On Motion for Rehearing.
    
      2. Criminal law <©=829(18) — Refusal of requested instruction as to reasonable doubt held not erroneous in view of given instruction.
    In a prosecution for the unlawful manufacture of intoxicating liquor, the refusal of a requested instruction that, unless the jury found from the evidence beyond a reasonable doubt that the defendant, at the time he was found by the officers arresting him, was then engaged in the operation of a still in the manufacture of spirituous, vinous, and malt liquor, they should acquit him, held, not erroneous in view of the given instruction that, unless the jury found beyond a reasonable doubt that the offense was committed by accused at the time and place alleged in the indictment, they should find him not guilty.
    Appeal from District Court, Collingsworth County; J. A. Nabers, Judge.
    John Benson was convicted of unlawfully manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    Templeton & Templeton, of. Wellington, for appellant.
    R. 6. Storey, Asst. Atty. Gen., for the State.
   BATTIMORE, J.

Appellant was convicted in the district court of Collingsworth county of unlawfully manufacturing intoxicating liquor, and his punishment fixed at one year in the penitentiary. This is a companion case to No. 7282, Elbert Eads v. State, 252 S. W. 531, opinion this day handed down.

The questions of law raised in this case and by motion to quash are the same as those presented and discussed and decided adversely to appellant in the case referred to. The testimony in the two cases was substantially the same, except as herein further discussed. The state witnesses who approached the premises occupied by Elbert Eads and John Benson were watching for the appearance of persons around the premises, and all testify that, as they approached the house, they saw no one. When they had gotten out of the car and gone around the building they saw appellant coming from the direction of the dugout in which they presently found whisky in process of manufacture. One of said witnesses states that appellant was coming from the dugout. Appellant was a married man, amj lived in the house belonging to Elbert Eads, who was single, and who lived with appellant. The only defense offered was a denial of participation in the manufacture of the liquor that was being then and there made, and a denial of knowledge of the existence of the still or the manufacture of any liquor on the premises. There seems no question but that Elbert Eads was in the dugout where the liquor was being manufactured at the time the officers got out of their car and went around the residence. There seems little doubt of the proposition that appellant was also in said dugout as the officers approached the premises. He claimed to have been at the windmill engaged in laying some planks over a muddy approach to the well, but the testimony of the officers as to the proximity of the windmill to the lot and their scrutiny of the premises as they approached sufficiently negatived the truth of his statement. Appellant further testified that he had been living in the house with Eads for about 10 days, and that if there was any still on the premises or any whisky being manufactured in the dugout he knew nothing of it. That the jury were justified in concluding this statement false is apparent. A two-room house on a prairie, with nothing near in the way of improvements save a windmill, a lot inclosed by a barbed wire fence and planks, in which lot were located a small slat crib and the dugout in question, would all present a situation making it so manifestly impossible for a man in possession of his ordinary senses to be in and around said house for 10 days or a week, or even one day, when a still was bubbling and boiling and mash fermenting in said dugout, and truthfully say that he knew nothing of its presence, that it would tax the credulity of the most confiding. The court submitted the law of principals, and upon request also the law of circumstantial evidence, and with the facts before them the jury has decided that appellant was guilty. We are not lea to believe them influenced by prejudice or passion, or that tbeir verdict finds no support in a fair inference and deduction from the testimony before tbem.

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

On Motion for Rehearing.

In his motion for rehearing appellant insists that the failure of the trial court to give his special charge No. 2 was such error as should call for a reversal. Said requested charge is as follows:

“You are further instructed that, should you find and believe from the evidence that there was a still found at the place where defendant was then living, and that said still was in operation at the time same was found by the officers, still you would not be authorized to return a verdict of guilty against the defendant unless you further find and believe from the evidence beyond a reasonable doubt that defendant was then engaged in the operation of said still, and that said still at the time was manufacturing spirituous, vinous, and malt liquor as charged in the indictment, and, should you have a reasonable doubt of defendant’s participating in the operation of said still, you will give him the benefit of said doubt, and acquit him.”.

We find in-the charge of the court as given the following:

“Should you find, or have a reasonable doubt thereof, that, although some one committed the offense charged against defendant at the dugout testified .about, and at or about the 15th day of March, 1922, yet should you further find that at the time such offense was committed, if you find it was committed, said defendant was at another and different place, you will find defendant ‘not guilty.’ ” '
“Should you find, or have a reasonable doubt thereof, that at the time the liquor testified about was made, if you find it was made, that said defendant did not make it, nor assist any one in making it, you will find him ‘not guilty.’ ”

The court gave a special charge on circumstantial evidence requested by the appellant which in words told the jury that they must believe that the testimony excluded every other reasonable hypothesis or conclusion than that of the defendant’s guilt, and must produce in their minds a reasonable and moral certainty that he committed the offense charged in the indictment. We find ourselves unable to believe that the giving of said special charge would have caused the jury to arrive at a different conclusion from that reached by them herein.

We have considered the matters raised by appellant in this motion, but are constrained to believe the case correctly decided on original presentation, and the motion for rehearing will be overruled. 
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