
    HARRISON v. STATE.
    (No. 9652.)
    (Oourt of Criminal Appeals of Texas.
    April 7, 1926.
    Rehearing Denied May 5, 1926.)
    I. Intoxicating liquors <&wkey;I74 — Where whisky v/as made at a different time from whisky seized at date of capturing still, defendant could be convicted both of possessing whisky for sale and of manufacturing it (Pen. Code 1925, art. 666).
    Where whisky seized by officers on day following seizure of still was made at another and different time from whisky that was seized by them on date of capturing still, defendant could be guilty under Pen. Code 1925, art. 666, both of possessing whisky for sale and of manufacturing it.
    
      2. Criminal law &wkey;589(l) — In prosecution for possessing whisky for sale, continuance to await determination of appeal from conviction for manufacturing other whisky held properly denied; offenses being separate and distinct.
    In prosecution for possessing for sale intoxicating liquor seized the day after officers had captured a still and whisky, "continuance, to await determination of appeal from conviction for manufacturing of whisky seized with still held properly denied, since offenses were separate and distinct.
    3.- Criminal law <&wkey;829(l).
    Refusal of requested special charge, covered by court’s general charge, is not error.
    On Motion for Rehearing.
    4. Criminal law <§=>1086(14), 1090(14) — Complaint of refusal of special charge held "not reviewabie, where no notation of refusal appeared, and refusal did not appear in separate bill of exceptions. >
    Complaint of refusal of special charge held not reviewabie, where charge had no notation of fact of an exception to its refusal, nor was such refusal complained of in a separate bill of exceptions.
    Commissioners’ Decision.
    Appeal from District Court, Grayson County; IT. E. Wilcox, Judge.
    Jim Harrison was convicted of possessing intoxicating liquor for sale, and he appeals.
    Affirmed.
    J. P. Cox, of Sherman, 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 Grayson county for possessing intoxicating liquor for sale, and his punishment assessed at one year in the penitentiary.

The record discloses that on December 5, 1924, the officers raided the premises of one Jess McClure, and captured a still in operation, about seven barrels of mash, and some whisky, and there found a Mr. Short and a negro by the name of Lum Burton in charge. Short and, Burton were arrested, and the still, equipment, and the whisky were seized and taken away by the officers. On the following day the officers returned to said premises and found 30 gallons of corn whisky concealed under a pile of stove wood, about 60 yards from the point where they' captured the still and whisky and arrested the said parties. It was the contention of the state, and evidence was introduced to that effect, that the still in question was being operated by the appellant and said Jess McClure and had been so operated since about the 1st of November prior thereto, and that they were jointly interested in the whisky there made. The state further contended that the appellant was superintending the manufacturing of the whisky in ■ question and giving same his personal attention, while the said negro and the other parties were working under him. It was the contention of the appellant that he had no interest in the still and whis-ky in question, and that he was not connected in any manner therewith, but that he was working for said McClure in building a levee on his premises and using his teams in connection therewith.

Appellant, when this ease was called, filed a motion for a continuance, .setting up the fact that he had, prior thereto, been convicted in the district court of Grayson county for the offense of manufacturing intoxicating liquor, involving the same transaction, and had been given a sentence of one year in the penitentiary, from which he had effected his appeal to this court, where the same was then pending. In connection therewith, • appellant prepared and presented in the usual form a plea of former conviction, setting up the same facts, requesting that the instant case be passed until this court had passed on his said appeal. This motion and>plea of former conviction were contested by the state, contending that the instant case did not involve the same transaction or facts upon which appellant had been convicted for manufacturing intoxicating liquor, but involved different criminal acts, to wit, the possession of the said 30 gallons' of whisky found on said premises the day following the seizure and capture of the still. The trial court overruled said motion for a continuance, and his action in so doing is now before us, by proper bill of exceptions, for review.

The record discloses that the court in his charge to the jury confined them to the consideration only of the 30 gallons of whisky found under the stove wood, and informed them that they could not consider any evidence of the raid of the still, and the manufacturing of whisky at the time same was captured for any purpose except to show, if it did, the appellant’s connection with, or interest in, the 30 gallons of whisky in question. Article 666 of the new Penal Code makes it an offense to possess whisky for the purpose of sale, and also makes it an offense to manufacture whisky.. In other words, the accused could be guilty, under the statute, of both offenses. This court, in construing this statute in Smith v. State, 234 S. W. 893, 90 Tex. Cr. R. 273, opinibn by Presiding Judge Morrow, stated:

“The unlawful possession of intoxicating liquors is a felony when possessed for sale, and the unlawful manufacture of intoxicating liquors is a felony. The two do not necessarily constitute the same a'ct. The possession may be entirely independent of the manufacture and the possession of equipment may likewise be entirely independent of the possession of intoxicating liquor or the manufacture thereof.”

The state’s evidence in .this case showed that all of the 30 gallons of whisky in question were made at another and different time from the whisky that was seized by the officers on the date of capturing this still. Under the facts of this case and under' the Smith Case, supra, and the law as we understand it, we are of the opinion that there is no error shown in the ruling of the court in refusing to postpone this case to await the determination of the appeal from the conviction for the manufacturing of other whisky, because the record clearly shows, as we read it, that the instant case charges a separate and distinct offense from that of the said former conviction.

Appellant also complains of the action of the court in refusing to submit to the jury his special charge. This charge, as presented, shows no error. Besides, we are of the opinion that the court properly submitted in his general charge to the jury the law on the issue' suggested in said special charge.

After a careful investigation of the entire record, and finding no error therein, we are of the opinion that the judgment of the trial court should be affirmed, and it is accordingly so ordered.

PER CURIAM. The foregoing opinion by 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.

LATTIMORE, J.

The special charge asked by appellant, complaint of the refusal of which was assigned as error, bears thereon no notation of the fact of an exception to its refusal; nor is such refusal complained of in a separate bill of exceptions. The matter is before us in no such way as calls for a review at our hands.

We have again reviewed the three bills of exception reserved by appellant and discussed in our former opinion, and have also considered anew the testimony, but believe the case was correctly disposed of in our former opinion.

The motion for rehearing will be overruled. 
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