
    WEIR v. STATE.
    (No. 10418.)
    Court of Criminal Appeals of Texas.
    June 8, 1927.
    1. Intoxicating liquors.<&wkey;226 — Testimony that still was usable for making intoxicating liquor held proper in prosecution for possessing still.
    In prosecution for possessing still for manufacturing intoxicating liquor, admission of testimony that still was usable for purpose of making intoxicating liquor held not error, where witnesses were qualified.
    2. Criminal law &wkey;683(2) — Permitting testimony in rebuttal that still was usable for making liquor held not abuse of discretion in prosecution for possessing still.
    In prosecution for possessing still for manufacturing intoxicating liquor, trial court did not abuse discretion with reference to order of introduction of testimony by permitting witness to testify in rebuttal that still was usable for purpose of making intoxicating liquor.
    3. Criminal law <&wkey;l 169(6) — Where defendant was in possession of car containing still, state’s unsuccessful effort to show car belonged to another, if error, held harmless; verdict assessing minimum punishment.
    Where defendant, in prosecution for possessing still, had been found in possession of car containing still, unsuccessful effort of state to show that car belonged to another, if error, held harmless, especially where verdict assessed minimum punishment.
    4. Criminal law <&wkey;>359 — Where defendant, accused of possessing still, contended that another was an offender, testimony by such other, showing co-operation to entrap defendant and giving of information to sheriff, held admissible.
    Where defendant, in prosecution for possessing still, contended that another was an offender, testimony of such other that his cooperation was with purpose of trapping defendant, and that he informed sheriff of defendant’s possession of still, held admissible.
    5. Intoxicating liquors <&wkey;249 — Officer’s testimony that they received information that defendant possessed still hidden in automobile held admissible on issue of “probable cause’’ for search.
    In prosecution for possessing still for manufacturing intoxicating liquor, testimony of sheriff and deputies that they received information from one who had accompanied defendant that defendant possessed still hidden in automobile held admissible on issue of “probable1 cause,” since it was on this information that they acted in securing search warrant.
    6. Criminal law <&wkey;537 — Defendant’s statement, while under arrest, that he had still in car, resulting in finding of still, held admissible under confession statute (Code Cr. Proc. 1925, art. 727).
    In prosecution for possessing still, admission of defendant’s statement, while under arrest, that he had still in car, held not error, where subsequent search, based on such declarations find other facts amounting to “probable cause,” revealing that still was in car, brought it within Code Cr. Proc. 1925, art. 727, permitting introduction of verbal confession under arrest, where it results in finding fruits of crime or instrument with which it was committed.
    7. Criminal law <&wkey;364(4) — Defendant’s statement under arrest that he had still in car held admissible as res gestee in prosecution for possessing still.
    In prosecution for possessing still, statement of defendant while under arrest that he had still in car held admissible under rule of res gestee, in view of subsequent search revealing that still was in car.
    8. Criminal law &wkey;>394 — Testimony of finding of still in automobile held admissible, where search warrant was issued and search was justified under rule of “probable cause.”
    In prosecution for possessing still, testimony showing result of search of automobile and finding of still therein held properly admitted, in view of information received by officers, defendant’s declaration that car contained still, consent to search without warrant, and issuance and execution of search warrant.
    9. Intoxicating liquors <&wkey;236(19) — Evidence held to support conviction for possessing still.
    Evidence held sufficient to support conviction for possessing still for manufacturing intoxicating liquors, where still, suitable for manufacturing liquor, was found in defendant’s car, and had odor and bore appearance of having been used for such purpose.
    Appeal from District Court, Potter County; Henry S. Bishop, Judge.
    W. Weir was convicted of possessing a still for the purpose of manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    Culwell & Culwell, of Amarillo, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is the possession of a still for the purpose of manufacturing intoxicating .liquor; punishment fixed at confinement in the penitentiary for one year.

The witness Pyatt testified that he was a citizen of Panhandle, Tex.; that he had a conversation with the appellant in the town of Panhandle, in which the appellant represented that he had an understanding with a man named May that whisky would be manufactured by the appellant and sold by May. The witness further testified that, failing to find May, the appellant proposed to Pyatt the same arrangements; that Pyatt assented, and after consideration it was agreed that they should go to Amarillo, where appellant would manufacture the liquor and Pyatt would sell it at Panhandle. The parties went to Amarillo in a Ford car. After reaching Amarillo, the witness Pyatt reported the matter to Fry, sheriff of Randall county, and informed him that the appellant was in possession of an automobile containing a still, which was obscured by bedding and other articles. Pyatt pointed out the car to Fry, who in turn reported the matter to Sloan and' Ramsey, deputy sheriffs of Potter county, and accompanied them to the automobile in question. Sloan and Ramsey told the appellant that they wanted to investigate him, to which he consented. They rode together in the car to the jail yard, where a search warrant was obtained. Before the search was made, appellant told the officers that there was a still in the car, and, when informed that they were about to get a search warrant, he told them to go ahead and search the car; that no search warrant was needed. However, they got a search warrant, and upon searching the car found a still suitable for manufacturing intoxicating liquor.. The still had the odor and bore the appearance of having been used for that purpose.

The complaint of the receipt of testimony to the effect that the still which was found in possession of the appellant was usable for the purpose of making intoxicating liquor, we think.is without merit. The witnesses were qualified, and in permitting one of them to give testimony in rebuttal the trial court was not shown to have transcended the rule which vested in him discretion with reference to the order of the introduction of testimony. The appellant having been found in possession of the car, we fail to perceive any harmful error in the unsuccessful effort of the state to show that the car belonged to another person, especially in view of the verdict assessing the minimum punishment.

Appellant testified, and took the position that Pyatt was an offender, that the automobile was under Pyatt’s control, and thqt the appellant was simply a passenger, innocent of the criminal intent or knowledge concerning the contents of the car. To meet this view, it seems to have been obviously proper to... receive the testimony of Pyatt to the effect that the appellant had made to him a proposition to engage in the unlawful manufacture of intoxicating liquor, and that Py-att’s co-operation with him to the extent shown was not in good faith, but with the intent and purpose of trapping the appellant. For the same purpose was Pyatt’s further testimony and that Of Sheriff Fry to the effect that Pyatt had informed him and the deputies of the appellant’s possession of the still, and pointed out to them the appellant and the automobile in which the offending still was found.

The testimony of Fry, Sloan, and Ramsey to the effect that they received information from Pyatt to the effect that the appellant was in possession of a still,-which was hidden in the car in the appellant’s possession, was admissible upon the issue of “probable cause,” as that term is defined in Odenthal v. State (Tex. Cr. App.) 290 S. W. 743, and Battle v. State, 105 Tex. Cr. R. 568, 290 S. W. 762. It was upon this informatiort that the officers acted in securing the search warrant and in searching the car.

The declarations of - Pyatt to the officers might, with propriety, have been limited by the court to the purposes above mentioned, and possibly such limitation would have been made, had it been requested. However, it is not perfectly clear, in view of the appellant’s contention and testimony, that Pyatt was in control of the car and the still, and the circumstances showing that they came to Amarillo together did not render the declarations of Pyatt to the officers, resulting in the discovery of the contraband property, admissible under the rule that the declarations of co-principals may be received against either of the parties. However, as to the admissibility upon that ground no opinion is expressed. The court charges the jury on the law of accomplice testimony, and the necessity for corroboration in connection with the testimony of Pyatt.

A bill of exceptions complains of the receipt in evidence of a statement by the appellant while he was under arrest that he had a still in his car, the objection being that the formalities required by the confession statute were not complied with. See article 727, C. O. P. 1925. The subsequent search, based on the'declarations and other facts amounting to “probable cause,” revealing that the still was in the car, brings it within that phase of the confession statute which permits the introduction of a verbal confession of one under arrest, where it results in the finding of the fruits of the crime or the instrument with which it was committed. See Singleton v. State, 87 Tex. Cr. R. 302, 221 S. W. 610, and other cases collated in Vernon’s Tex. C. C. P. 1925, vol. 2, p. 829. The declaration, moreover, seems to have been admissible under the rule of res gestm. White v. State, 102 Tex. Cr. R. 456, 278 S. W. 203; Copeland v. State, 94 Tex. Cr. R. 112, 249 S. W. 495.

A bill complains of the testimony showing the result of the search of the car and the finding of the still therein'. The knowledge in the possession of Eamsey, obtained from the witness Sky, going to show that there was a still in the car, covered with bedding, etc., together with the declaration of the appellant, near the time of his arrest, that the car contained a still, would have justified the search under the rule of “probable cause,” as defined in Odenthal v. State (Tex. Cr. App.) 290 S. W. 743, and Battle v. State, 105 Tex. Cr. R. 568, 290 S. W. 762. Moreover, the evidence shows that the appellant consented to the search, and told the officers that a search warrant was not needed. See Hall v. State, 105 Tex. Cr. R. 365, 288 S. W. 202. Furthermore, it appears that a search warrant was issued and executed.

Our examination of the evidence and the various complaints of the procedure leads us to conclude that the evidence supports the verdict, and that in his rulings the trial judge committed no error justifying a reversal of the judgment.

It is therefore affirmed. 
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