
    COPELAND v. STATE.
    (No. 7316.)
    (Court of Criminal Appeals of Texas.
    March 28, 1923.)
    1. Criminal law &wkey;»368(3) — Testimony of defendant’s brother that still and. liquor were his held admissible as res gestee.
    In a prosecution for manufacturing intoxicating liquor, a statement to the arresting officers by defendant’s brother, who was also arrested, that a still and liquor found in a tenant house on his farm belonged to him, and that defendant, who occupied the house, was merely a hired hand, and had nothing to do with them, held admissible as res gestee, even if the brother were not a party to the transaction.
    2. Intoxicating liquors <©=»239(1) — Refusal to submit defense that liquor and still found on defendant’s premises were his brother’s held erroneous.
    In a prosecution for manufacturing intoxicating liquors, refusal to submit defendant’s contention that he was merely a hired hand on his brother’s farm, that he made no liquor, and that the still and mash found in the tenant house occupied by him belonged to his brother, who so stated to the officers at the time of the arrest, held erroneous.
    Appeal from .District Court,' Denton County; C. R. Pearman, Judge.
    Jim Copeland was convicted of unlawfully manufacturing intoxicating liquor, and be appeals.
    Reversed and remanded.
    Mays & Mays and E. M. Chaney, all of Fort Worth, and Owsley & Owsley, of Den-ton, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Denton county of the unlawful manufacture of intoxicating liquor, and his punishment fixed at one year in the penitentiary.

Drew Copeland owned a farm in Den-ton county on which he lived. In a tenant house not far from his residence lived appellant with his wife, appellant being a brother of Drew Copeland. Stanley and his wife were staying at the same place with appellant. , On the occasion in question officers raided the premises about noon. They found a still in appellant’s house and about eight gallons of whisky. The still was hot when the officers went in; its contents was bubbling and boiling. The officers arrested appellant, Stanley, and Drew Copeland. The latter stated that the still and liquor were his; that appellant and Stanley had nothing to do with the liquor or the still; that they were hired hands, whose duties were connected with the farm only. This statement was offered in evidence by appellant upon this trial! The state’s objection was sustained, and it was not admitted. This was error. The. statement was unquestionably res gestae. The manufacture of the liquor in question was in progress; the. state implicated each of the men named in such manufacture. Many cases might be cited upholding the proposition that acts and declarations made at the time of all parties to a transaction are res gestae. Weathersby v. State, 29 Tex. App. 278, 15 S. W. 823; Craig v. State, 30 Tex. App. 619, 18 S. W. 297; Lewis v. State, 29 Tex. App. 201, 15 S. W. 642, 25 Am. St. Rep. 720; Fulcher v. State, 28 Tex. App. 465, 13 S. W. 750; Testard v. State, 26 Tex. App. 260, 9 S. W. 888.

If doubt existed as to whether Drew Copeland was' a party to this transaction, which wé do not think can exist as we understand this record, still it has been often held that, if statements of third parties are part of the transaction, and go to illustrate the feelings, motives, and acts of. the principal actors, proof of same is admissible as part of the res gestas. Jeffries v. State, 9 Tex. App. 603; Redman v. State, 67 Tex. Cr. R. 374, 149 S. W. 670; Pettis v. State, 68 Tex. Cr. R. 221, 150 S. W. 791; Smith v. State, 70 Tex. Cr. R. 62, 156 S. W. 215; Wynne v. State, 59 Tex. Cr. R. 126, 127 S. W. 213. .

That appellant was at the house when liquor was in process of manufacture is plain. His defensive theory and explanation of the situation, supported by his testimony, was that he was but a hired hand on the farm of his brother, making $30 a month, and being permitted to live in the house in which he was found, but that his brother had reserved and had-control of the kitchen thereto. He testified that he and Stanley had been cutting wood all the morning, and. ■had come to the house for their dinner just prior to the appearance of the officers, and that he had nothing whatever to do with the mating of liquor. _ Bread, meat, and' coffee were cooking on the stove. Dinner was eaten by the officers with the family shortly after the raid. If the above theory of appellant was in fact true, and supported by proof, he would not be guilty. He testified to it, and presented to the trial court a special charge ' submitting affirmatively the proposition involved in said defensive theory. The special charge was refused. The main charge nowhere submits such theory. The refusal of the special charge, or the failure to give the principle involved therein, was erroneous. It would be no defense that appellant was a hired hand if he was in fact making liquor, but, his defense being that he made no liquor, and that the still and the mash belonged to his brother, who was present, and then stated to the officers that such making and paraphernalia were in fact his, presented such circumstances as called for the giving of said special charge, or one embodying an affirmative presentation of the issue made by appellant’s testimony. Duncan v. State, 90 Tex. Cr. R. 479, 236 S. W. 468. The case of Harrison v. State, 47 Tex. Cr. R. 393, 83 S. W. 699, discusses a somewhat similar proposition.

For the' errors mentioned, the judgment will be reversed, and the cause remanded. 
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