
    VAUGHN v. STATE.
    (No. 11048.)
    Court of Criminal Appeals of Texas.
    Oct. 26, 1927.
    Rehearing Denied Jan. 18, 1928.
    1. Criminal law <⅜3>784(1) — Evidence of manufacture of whisky held not to require instruction on circumstantial evidence.
    In prosecution for manufacturing intoxicating liquor, where state produced direct evidence of defendant’s acts at still, refusal to give instruction on circumstantial evidence heldI not error.
    2. Criminal law <⅜»329|(4) — Refusing requested instructions, in prosecution for manufacturing intoxicating liquor, held not error, where covered in court’s charge.
    Refusing requested instructions on defendant’s affirmative defense, in prosecution for manufacturing intoxicating liquor, held not error, where court’s charge fully covered the affirmative defense.
    On Motion for Rehearing.
    3. Criminal law <9^829(4) — Requested Instruction, in prosecution for manufacturing liquor, to acquit defendant, if his acts at still were ■ done as investigation and out of curiosity, held substantially covered in court’s charge.
    Requested instruction, in prosecution for manufacturing liquor, that, if defendant’s acts at still were done as a matter of investigation and out of curiosity, he should be acquitted, held substantially covered by charge that jury should acquit if they believed appellant acted out of curiosity.
    Commissioners’ Decision.
    Appeal from District Court, Johnson County; Irwin T. Ward, Judge.
    T. B. Vaughn was convicted of manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    W. E. My res, of Fort Worth, for appellant. Jewel N. Bauldwin, County Atty., and Pennington J. Jackson, Asst. Co. Atty., both
    
      of Cleburne, and A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is manufacturing intoxicating liquor; the punishment confinement in the penitentiary for one year.

Officers, watching a still they were preparing to seize, saw appellant with a bucket in his hand dipping mash out of a barrel and pouring it in the still. There were others at the still. When appellant and his companions were arrested, officers found that the still was running whisky.

Appellant assigns as error the failure of the court to submit to the jury as requested by him a charge covering the law of circumstantial evidence. We understand that the main fact — that is, the manufacturing of the whisky by appellant — was shown by direct evidence. An officer saw appellant dipping mash.out of a barrel and pouring it in the still. See Arzate v. State, 99 Tex. Cr. R. 534, 270 S. W. 1017.

The court did not err in refusing to submit to the jury appellant’s requested instructions Nos. 4 and 5. Paragraphs 4 and 5 of the court’s charge fully cover the affirmative defense of appellant.

We have carefully examined the other matters complained of by appellant and find no error.

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.

UATTIMORE, J.

Appellant cites the case of Berry v. State, 104 Tex. Cr. R. 114, 282 S. W. 594, in support of his contention that we erred in not holding this a case of circumstantial evidence. In that case no one saw the accused in actual possession of the mash, etc. In the ease before us officers testified that they actually saw appellant dip the mash up from the barrel and convey it to the still. We do not believe this a case of circumstantial evidence.

We see no reason to believe our conclusion that the charge of the court fully submitted the affirmative defense was erroneous. In the special charge asked appellant sought to have the jury told that, if they thought his acts at the still were matters of investigation and out of curiosity, he should be acquitted. The charge of the court embraced substantially the same proposition. The court did not include the word “investigation,” but did tell the jury if they believed what appellant did was out of curiosity, etc., they should.acquit. Appellant testified that when he picked up the bucket he intended to dip up some of the mash out of curiosity. There may be some substantial difference between the defense submitted by the court and that contained in the special charge refused, but we are unable to grasp it.

The motion for rehearing will be overruled. 
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