
    SCHMIDT v. STATE.
    (No. 8347.)
    (Court of Criminal Appeals of Texas.
    April 2, 1924.)
    1. Intoxicating liquors <§xw131— Conviction of manufacturing cannot be based on evidence of mere intent or preparation.
    It is the commission of the act of manufacturing intoxicating liquor that is punishable under the, statute, and. not the mere intent to do so or preparation therefor.
    2. Intoxicating liquors <$=>131 — Act done after arrest and pursuant to officer’s directions could not be basis of conviction for manufacturing.
    An act which accused did after his arrest and under the direction of the officers, of screwing down a -cap -on a boiler of a still so a<s to produce vfhisk'y, could not serve as a .basis of his conviction for manufacturing intoxicating liquor.
    .3. Criminal law <§x»772(6) — Refusal to give requested .charge embracing defensive theory arising from state’s evidence held reversible error.
    In a prosecution for manufacturing intoxi- . eating liquor, where the evidence showed that after his arrest and under officer’s directions accused screwed down the cap of a boiler of a still so as to produce whisky, refusal to give requested charge, embracing defensive theory ■arising from state’s evidence that accused had designed to commit the offense, and hdd prepared himself to do so, but that he had not accomplished the act of manufacturing, held reversible error.
    <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    
      Appeal from District Court, Jefferson County; George C. O’Brien, Judge.
    William Schmidt was convicted of manufacturing intoxicating liquor, and lie appeals.
    Reversed.
    Howth & O’Fiel, M. G. Adams, Bamar Hart, and Jno. T. Hitching, all of Beaumont, for appellant.
    Tom Garrard, State’s Atty., Grover C. Morris,. Asst. State’s Atty., both of Austin, for the State.
   MORROW., P. J.

The offense is the manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of three years.

The premises of the appellant were searched, and in his dwelling house were found a number of labels of various brands of whisky. In an outhouse were also found a still, several barrels of mash, 100 pounds of sugar, and a number of bottles and jugs. The still was complete, and there was fire under the boiler. No liquid was ■ running from the still. It was not hot enough to boil. Appellant was in his dwelling house, when the officers arrived. After, their arrival, they caused him to “screw the cap down.” “The cap was on, but was not screwed tight.” “It is customary not to screw them down until the stuff is hot.” It was not making whisky in the state it was' then in, but it would make it. The officer said:

“We called him (appellant) to the barn and he came on out. The top was not screwed down until he came.”

Appellant was told by one of the officers to screw it down, and in obedience thereto and in their presence he screwed it down. The officers then waited a while, and whis-ky began to run from the still. They placed a bottle under it, and then remained until a quart of whisky was run into the bottle from the still.

The court submitted the case to the jury, and embraced in his charge an- instruction upon the law of circumstantial evidence. There were some objections to the charge; also some requested special charges which were refused. One of these read thus:

“You are instructed that, although one may intend to manufacture intoxicating liquor and prepare to do so and secure the necessary equipment used in the manufacture of intoxicating liquors, yet, if before there is actually intoxicating liquors manufactured he is for any reason interrupted and fails to accomplish his object, he is not guilty of: any offense. Therefore I charge you that, although you may believe from the evidence beyond a reasonable doubt that -the defendant, owned and possessed the equipment testified about by the state’s witnesses and erected and installed the same for the purpose of manufacturing intoxicating liquors and really intended to manufacture the same, yet you cannot find the' defendant guilty unless you .further believe from the evidence beyond a reasonable doubt that he actually accomplished his object, and did actually manufacture intoxicating liquors, or from the result of his labors he obtained whisky capable of producing intoxicating liquors, you will find him not guilty, and will acquit him; and in this connection I further charge you that, if the defendant had intended to manufacture said whis-* ky, but upon the arrival of the officers he then changed his mind, and would not have manufactured the same, then he would not be guilty if he did actually manufacture the same under the compulsion or at the instance of the officer then holding him under arrest, or, if there is a reasonable doubt thereof, you will acquit the defendant.”

The court’s charge embraced no defensive theory. In it the jury is told that, if’ appellant manufactured whisky, he should be found guilty, and his punishment assessed at confinement in the penitentiary. The special charge requested would have been appropriate in submitting the converse of this proposition and to submit the defensive theory arising from the state’s evidence, namely, that the appellant had designed to commit the offense and had prepared himself to do so, but that he had not accomplished the criminal act denounced by that phase of the statute with the violation of which he was charged. It is obvious that it is the commission of the act which is punishable and not the mere intent or preparation. One may design to commit murder and prepare himself and even lay in wait for his victim, and yet fail by reason of interruption or change of mind to slay his victim; he would not be guilty of homicide. Cheatham v. State, 57 Tex. Cr. R. 442, 125 S. W. 565; Rasberry v. State, 84 Tex. Cr. R. 393, 208 S. W. 168.

The principle stated has application to offenses of the nature of that with which the appellant is charged, and upon similar facts such a charge as that refused has been held appropriate. Emery v. State (Tex. Cr. App.) 254 S. W. 957; Hardaway v. State, 90 Tex. Cr. R. 485, 236 S. W. 467. In the present case the evidence fails to show that at the time the officers arrived there was any intoxicating liquor upon the appellant’s premises. There was no direct testimony that he had' at any time manufactured or had upon his premises any intoxicating liquor. The evidence of whisky on the premises which entered into the trial is conclusively shown to have been that which was run from the still after both the still and the appellant came into the possession of the officers; and under the direction of the officers the appellant had adjusted the still by ^crewing down the top so that it would perform its function. The acts which appellant did after his arrest and upon direction of the officers cannot be made the basis of his conviction. His guilt must be tested by the things which he did of his own volition and not those tfiat were done under the direction of the officers. Upon the request of the appellant the jury should have been so instructed. The request which, was refused would have accomplished this purpose. '

There are other questions presented in the record, but their discussion is not deemed necessary or expedient.

The record reveals an unhappy controversy between the counsel and the learned trial judge touching the allowance of the bills of exceptions. The practice governing the preparation and settlement of bills of exception was the subject of discussion by this court in the opinion in the case of Exon v. State, 33 Tex. Cr. R. 461, 26 S. W. 1088; Thomas v. State, 83 Tex. Cr. R. 325, 204 S. W. 999; Bryant v. State, 84 Tex. Cr. R. 343, 207 S. W. 930; Drawhorn v. State, 84 Tex. Cr. R. 601, 209 S. W. 415; Rodgers v. State, 91 Tex. Cr. R. 44, 236 S. W. 748; Rosa v. State, 86 Tex. Cr. R. 646, 218 S. W. 1056. Others may be cited. However, those to which we have adverted should leave no room for controversy concerning the reciprocal rights and duties of court and counsel with reference to the preparation, presentation, and modification of bills of exception, and the prepara•tion of bystander’s bills.

The errors pointed out require a reversal of the judgment. It is so ordered.  