
    CLARK v. STATE.
    (No. 10149.)
    (Court of Criminal Appeals of Texas.
    May 5, 1926.
    Rehearing Denied June 23, 1926.)
    1. Intoxicating liquors <&wkey;>236(19).
    Evidence held to support conviction of manufacturing intoxicating liquor.
    2. Criminal law &wkey;>l!7l(6).
    Inflammatory argument by district attorney against bootleggers held not injurious to defendant receiving lowest penalty for manufacturing liquor.
    3. Criminal, law t&wkey;d038(3).
    In absence of request for instruction not to consider objectionable argument, appellate court will not interfere, unless harmful effect of argument could not have been removed by instruction.
    Appeal from District Court, Jefferson County; J. D. Campbell, Judge.
    Erañk Clark was convicted of manufacturing liquor, and he appeals.
    Affirmed.
    Rose & Johnson, and E. G. Vaughn, all of Port Arthur, for appellant.
    Sam D. Stinson,. State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   LATTIMORE, J.

Conviction in district court of Jefferson county of manufacturing intoxicating liquor; punishment one year in the penitentiary.

About two miles from Port Arthur in Jefferson county is Port Acres. About 6 o’clock on a certain Friday the sheriff of the county was in Port Acres and observed appellant and two other men loading a skiff with groceries, oil, gasoline, etc. The skiff was tied on behind a launch. After loading the boat, the three men left with the launch and skiff, going up what is known as Taylor’s bayou. The sheriff testified that he had known appellant -about two years, during which time he -had never known of his being engaged in -any business. When he saw said men leave Port Acres, he at once began to make preparation, as he testified, to search for stills, having had information that “they were running up said bayou.” Among other things which he saw them load into the boat were a number of 5-gallon cans of gasoline, also oil cans, the latter having potatoes stuck on the spouts. Securing a launch and a skiff, the sheriff left the next morning about daylight, as he expressed it, “to look for those men and their stills.” As the sheriff’s party proceeded up Taylor’s bayou, they saw appellant in the skiff which had been loaded with the gasoline, etc., the night before, come, into Taylor’s bayou from what the witnesses called “a little blind slough — a floating turf slough.” The sheriff and another man got in their skiff and went into said blind slough. After going a short way they heard a roaring noise, and, going toward the noise, they came to where two large stills, were in operation on the bank— one burning, being fired by a gasoline pressure tank which made the noise they heard; the other still was paying off, i. e. the whis-ky was running from the coil. Lying under the shade of some cane near the still were the two other men who had left Port Acres the night before with appellant. Both o'f said men were arrested. Empty mash barrels were scattered about, some 18 in number. In one barrel was found 35 gallons of whisky. The 5-gallon gasoline cans which the three men had been seen to load into the boat the night before at Port Acres were at the stills. The oil cans with potatoes stuck in the spouts were found in the launch. According to the estimate of one witness, the place 'where appellant was seen to come out of the blind slough which led up to the stills was about 75 or 100 yards from said stills. Appellant was in his working clothes, and, as said by one witness, was greasy, dirty, and smutty, and looked like a man who had been out all night. The sheriff testified that when they left appellant where they saw him in the skiff come out of the blind slough, he told appellant to stay around, that they would be back for him in a minute or two. When they presently came back to the place appellant had gone and was not seen by them until he was arrested a week or more later.

The evidence is thus set out because its sufficiency is challenged. The court submitted the case on the theory pf circumstantial evidence. We deem it scarcely necessary to recapitulate, but have no doubt of the sufficiency of the evidence to justify the jury in concluding on the facts that appellant was equally guilty with the other two- men.

Two bills of exception present exceptions to argument of state’s counsel: In each instance the objection was that the argument was inflammatory. The argument was directed toward bootleggers in general. The evidence supporting the verdict and the lowest penalty having been inflicted, this would appear to overcome the claim of likelihood of injury from such argument. We further observe that there was no request in either instance for an instruction to the jury not to consider said argument. In such case, unless we conclude the argument of such vicious character as that its harmful effect could not have been removed by such instruction, we will not interfere. We do not so think in this case.

We And no fault with the court’s charge on circumstantial evidence; which may have been corrected after appellant’s exceptions to same were presented, nor do we deem it necessary that the special charge asked on this issue have been given.

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