
    ELLIOTT v. STATE.
    (No. 10025.)
    (Court of Criminal Appeals of Texas.
    March 24, 1926.)
    1. Criminal law <&wkey;368(3) — Declarations of accused’s brother, 15 minutes after raid, and while he was excited, that no one but himself was making whisky at still, held admissible as res gestae.
    Declarations of accused’s brother who ran from still on officers’ approach, made to a neighbor 15 minutes- after officers’ raid on still, and while he was excited, that no one but himself was making whisky at still, held admissible as res gestae.
    2. Criminal law <&wkey;772(6) — In prosecution for manufacturing liquor, failure affirmatively to present defensive theory that accused was only bystander held error.
    In prosecution for manufacturing liquor, failure affirmatively to present accused’s defensive theory that he was only bystander around still held error.
    Commissioners’ Decision.
    Appeal from District Court, Panola County ; R. T. Brown, Judge.
    
      Charley Elliott was convicted of unlawfully manufacturing intoxicating liquor, and he appeals.
    Reversed and remanded.
    Woolworth, & Baker, of Carthage, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   BAKER, J.

The appellant was convicted in the district court of Panola county for unlawfully manufacturing intoxicating liquor, and his punishment assessed at one year in the penitentiary.

The record discloses that the sheriff and his deputies located a still, slipped up within a short distance thereof, and discovered the appellant and four or five other men near same, and, upon the officers’ being discovered, all of the parties around said still ran, and the officers pursued them and discharged several ■ shots, and some of the parties fleeing were wounded, but all escaped. The still was in operation. It was the contention of the appellant that the still belonged to his brother, who was then operating and handling same, and he and the other parties present had just gone down there at the invitation of his brother,to get a drink of whisky, and that none of them except his brother was interested in said still in any way, and were not assisting in the operation of same in any manner. The appellant so testified, and offered testimony in support of this contention. The record discloses that the appellant’s brother died shortly thereafter.

By bill of exception 4, appellant complains of the action of the court in refusing to permit the witness Moreland to testify that Alonzo Elliott, appellant’s brother, passed his house, which was a distance of about a mile-and a half from where the still was located and raided, and appeared a little excited, and had the appearance of a man having been running or walking fast, and told said witness that about 10 or 15 minutes before the officers had raided his (Alonzo Elliott’s) still, and “had shot at him and some other parties who were there to get a drink, but that all had escaped, but that some of the parties had been shot; that he was sorry if any one was seriously shot for they had nothing to do with the still, as no one was making whisky but himself.” The court excluded this testimony upon objection by the state that it was hearsay. It is the contention of the appellant that same was res gestee of the transaction and therefore admissible. We think this contention is well taken. The bill with the court’s qualification thereon shows that the said Alonzo Elliott was talking about the same still and the same transaction, and that said conversation took place within about 10 or 15 minutes after the raid and seizure of the Still in question, and the witnesses appeared to be more or less excited, and showed to have been running or walking fast. For collation of authorities, see Branch’s P. C. §§ 85 and 86; Wharton, Criminal Evidence (10th Ed.) vol. T, § 262.

The appellant complains of the refusal of the court to charge the jury affirmatively on his defense to the effect that, even though they should believe that the defendant was present at the scene where the whisky was manufactured and where the still was seized, but that he did nothing to encourage the manufacture of the whisky, and exercised no possession of or control over the still, or had any interest therein, but was merely a bystander, they should acquit him. The court in his main charge nowhere affirmatively presented the appellant’s defense, and we think that the appellant’s contention ■ in this ease is well founded, and- that the court should have affirmatively presented the appellant’s defense to the jury. Garcia v. State, (Tex. Cr. App.) 273 S. W. 856; Stroehmer v. State, 272 S. W. 163, 100 Tex. Cr. R. 90; Arenson v. State, 261 S. W. 787, 97 Tex. Cr. R. 430.

For the errors above discussed, we are of the opinion that the judgment of the trial court should be reversed and remanded, and it is accordingly so ordered.

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. 
      
      
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