
    GOFORTH v. STATE.
    (No. 8540.)
    (Court of Criminal Appeals of Texas.
    Jan. 21, 1925.
    Rehearing Denied Feb. 25, 1925.)
    1. Intoxicating liquors <§=>13, 132 — State liquor law held not in conflict with federal Constitution or acts of Congress.
    The state prohibition law is not in conflict with the federal Constitution and acts of Congress. •
    2. Criminal law <§=>621 (2) — Court may direct order of trying defendants separately indicted, where they cannot agree.
    Where defendants were separately indicted for joint participation in same offense, and each filed motion for severance, asking that the other be tried first, under Code Cr. Proc. 1911, art. 727, court was authorized to direct order in which they should be tried.
    3. Criminal law ©=>594(1) — Denial of continuance for absence of witnesses held proper.
    Denial of continuance for absence of witnesses 7teld not error, where some were character witnesses, and many .witnesses had testified to defendant’s character, others were present in court, but not called, and as to remaining witness there was lack of diligence, in that no further effort than service of process on him was shown.
    4. Indictment and information <§=>169 — Admission of evidence as to manufacture after date charged held not error, where manufacture was continuous operation.
    Where indictment alleged manufacture of liquor to have occurred on or about July 30; admission of evidence as to operations by defendant after midnight of such date was not error, as manufacture in question was one operation; but, if divisible into two transactions, evidence of both were admissible under allegations of indictment, which was not filed until August 5, especially as defendant did not ask to have state make an election.
    5. Criminal law ©=>829(7) — Defense that defendant not present at nor participating in operation of still held sufficiently covered by instruction.
    In prosecution for manufacturing liquor, defense that accused was not present on first occasion testified to, and that on second occasion he was looking for calves, and not participating in operation of still, held sufficiently covered by court’s instruction.
    6. Criminal law'©=>763, 764(1), 811(1) — Requested charges on weight of evidence and singling out evidence properly refused.
    Defendant’s requested charges, which were on weight of testimony, and singled out various matters, and sought to have jury told that they could not be considered as evidence of guilt against defendant, held properly refused.
    On Motion for Rehearing.
    7. Criminal law ©=> 1090( 19) —Permitting officers to remain in court during trial not reviewable, in absence of bill of exceptions, though complained of in motion for new trial.
    Permitting state’s witnesses, who were officers, to remain in courtroom during trial, is not reviewable, in absence of bill of exceptions complaining thereof, though mentioned in motion for new trial.
    Appeal from District Court, Parker County; F. O. McKinsey, Judge.
    Herman Goforth was convicted of manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    Oscar H. Calvert, of Dallas, and Carter & Queen, of Weatherford, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

The conviction is for manufacturing intoxicating liquor; punishment being one year in the penitentiary.

There is no merit in the contention that the indictment should have been quashed, because the state law is in conflict with the federal Constitution and acts of Congress. Ex parte Gilmore, 88 Tex. Cr. R. 529, 228 S. W. 199. The same question has been decided some 30 pr more times by this court, following Gilmore’s Case, and by the Supreme Court of the United States in Chandler v. State of Texas, reported in 260 U. S. 708, 43 S. Ct. 247, 67 D. Ed. 475; also in Vigliotti v. Pennsylvania, 258 U. S. 403, 42 S. Ct. 330, 66 L. Ed. 686, and United States v. Lanza, 260 U. S. 377, 43 S. Ct. 141, 67 L. Ed. 314. It would seem that this ought to be settled, but the point continues to be raised.

Appellant and one Frank January were separately indicted for joint participation in the same offense. Each filed motions for severance, asking that the other be tried first. The court ordered that appellant be first tried. This was in accord with article 727, O. O. P., giving the court authority under such circumstances to direct the order in which they should he tried.

Continuance was sought by accused on account of the absence of some 13 witnesses. All but four of them were character witnesses for appellant. Many witnesses did testify as to the good character of defendant, which issue was not controverted. The four fact witnesses, for whom continuance was requested, were Gault, Probes, Robason, and Mc-Nalley. The first three named appeared in court and were sworn as witnesses. Roba-son was used by appellant; Gault and Probes were available, but were not called. Another witness (Childress) testified to the same facts which it was proposed to prove by McNalley. In view of the entire evidence, which the court had before him in passing upon the motion for new trial, we think no error was committed in denying the continuance. The diligence as to McNalley is doubtful. The application states that he was served with process, and that the subpoenas were attached; but none appear in the record. It is not shown that any further effort was made to secure McNalley’s presence, when he was found to be absent when the witnesses were called.

The indictment avers that appellant manufactured intoxicating liquor on or about the 30th day of July, 1923. Sheriff Gilbert testified that about the 22d or 23d of July he was passing near the premises of appellant’s father, and detected a smell which caused him to make an investigation; that in a branch or draw some distance from the road he found 9 barrels containing meal and chops, yeast, and sugar and water. He also found empty barrels, 'some in the branch, and some out on the ground. This locality was watched by the officers from that time until the evening of the 30th of July. Gilbert went to the premises - between 5 and 6 o’clock on that date and saw a still being operated by appellant and Frank January. One of them was pouring mash in to the still, and the other taking the whisky as it ran out and pouring it in a barrel. The sheriff made no arrest at this time, but went back to Weatherford. He secured other officers, and' returned to the locality of the still about dark. The sheriff approached close enough to the still at that time to see that it was yet in operation. He saw two persons there, but could not positively identify them at this time, it being dark. The sheriff went back to get the other officers, and when all of them approached the still the parties who had been operating it were gone. The officers remained on watch. About daylight appellant and January were seen coming from towards appellant’s house in the direction of the still. As they got near the still, one of them said, “We got to hurry and get through this morning if we get on the job,” to which the other replied, “Tes; we can get done.” When they got to the still, appellant got a bucket of water and went to a barrel. About this time the officers made the arrest.

Appellant seems to seriously contend that, because the indictment alleged, the manufacture to have occurred on or about the 30th of July, the evidence of the officers as to what occurred after midnight on the night of July 30th was not admissible. The objection is entirely without merit. The manufacture of this particular whisky seems to have been one operation. Even if it could have been divided into two transactions or acts of manufacture, the proof of either or both of them was admissible under the allegations in the indictment; the same not having been returned into court until the 5th day of August, 1923. If appellant felt that the conviction might be upon two transactions, he could have asked for an, election at the hands of the state; but this was not done. No possible injury occurred to appellant under any phase of the matter. His punishment was fixed only at one year; that being the minimum.

It is the contention of appellant that he was not present and participating in the operation of the still upon the evening of July 30th at the time the sheriff claims to have identified him as being so engaged, nor was he present on the night of that day. He accounts for his presence on the morning of the 31st at the still by stating that he was looking for some calves at the time, and had nothing to do with its operation. Upon these issues the court gave the following charge:

“If you believe and find from the evidence that whisky was made at the place and on the occasion in question, yet if you further believe that the defendant was at another and a different place, and was not present when same was made, or if you have a reasonable doubt as to whether the defendant was present or not, you will give him the benefit of such doubt, and acquit him.
“If -you believe from the evidence - that the defendant was at or near the still testified about, at the time of his arrest, and that whisky was running from the still at that time, if it was, yet if you further believe that the defendant was not interested in the manufacture of said whisky, and did not manufacture same, nor participate in the manufacture of same, nor act in any way as a principal in the manufacture of whisky at that place, and on or about the date alleged, .or if you have a reasonable doubt as to these matters, you will acquit the defendant, and say by your verdict ‘Not guilty.’ ”

Appellant asked 10 special charges, none of which we think it necessary to set out at length. Some'of them relate to the testimony given by the officers as to the transaction on the morning of the 31st of July; seeking to have that testimony withdrawn from the consideration of the jury. Others were upon the weight of the testimony, and singled out various matters, and sought to have the jury told that they could not be considered as evidence of guilt against appellant. See Weaver v. State (Tex. Cr. App.) 266 S. W. 409, and authorities therein cited. We think the court' not in error in declining to give any of such charges. Appellant’s defense was clearly submitted in the main charge, inis rights appear to have been protected by the court in submitting to the jury the issues raised by the defensive testimony.

Finding no error in the record, the judgment is affirmed.

On Motion for Rehearing.

Appellant seeks to have us review the opinion heretofore rendered on what he calls his “sixth assignment of error.”

The sixth paragraph of his brief makes complaint at the court permitting the state’s witnesses who were officers to remain in the courtroom during the trial. We find this matter mentioned for the first time in the motion for new trial. There is no bill of exception complaining of any such action on the part of the court. It is not brought before us in such a way as to claim attention. Such matters' cannot be complained of in motion for new trial, in lieu of a bill of exception.

The motion for rehearing is overruled. 
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