
    BLAND v. STATE.
    (No. 7067.)
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1922.
    Rehearing Denied Nov. 29, 1922.)
    1. Criminal law <&wkey;304(20) — Intoxicating liquors <&wkey;239(5)— Unnecessary to instruct jury to determine whether whisky manufactured by accused was intoxicating; whisky need not be proved to have been intoxicating.
    Where there is substantial evidence that accused was engaged in manufacturing whisky, it is unnecessary that a specific charge be given the jury to determine whether it was intoxicating, and proof that the liquor was whis-ky establishes the fact that it was intoxicating.
    2. Criminal law <&wkey;338(3)— Evidence held competent in view of other testimony.
    Where a witness'testified that, after finding a still and conversing with those operating it, he left and was joined by another in a nearby field, and the two of them returned to the still, the testimony of such other witness is competent.
    3. Criminal law <&wkey;423(5) — Conversation with accomplice in the presence of accused at still held admissible.
    Testimony of a detailed conversation which implicated accused in the manufacture of liquor, had with an accomplice at a still which was in operation and in the presence of accused, held admissible, particularly in view of the fact that the conversation invoked no denial from him at the time, and such part as he took in it tended to confirm rather than to deny.
    On Motion for Rehearing.
    4. intoxicating liquors <&wkey;236(l9)— Evidence held to sustain conviction for manufacture.
    Testimony held sufficient to sustain conviction of manufacturing liquor.
    5. Criminal law <&wkey;>!056(l) — Refusal of special charge not reviewable without exception.
    Denial of a special charge is not reviewable, and is deemed not objectionable or prejudicial to appellant where no exception is taken.
    6. Intoxicating liquors <&wkey;167 — Unnecessary to prove accused did each act necessary in the manufacture of intoxicants to convict as principal.
    To constitute proof of guilt of the manufacture of intoxicants, it is unnecessary to show that the liquor or the apparatus belonged to accused, or that he was the principal actor, or that he personally did each thing necessary to make the finished article; his mere presence and actual performance by him of any act necessary in the manufacture meets all the requirements of the law of principals.
    Appeal from District Court, San Augustine County; Y. H. Stark, Judge.
    Wallace Bland was convicted of unlawful manufacture 'of intoxicating liquors, and he appeals.
    Affirmed.
    E. T. Anderson, of San Augustine, Tex., and D. M. Short & Sons, of Center, for appellant,
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for- the unlawful manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of one year.

Davis testified that oh the 9th day of May, 1921, while he was hunting, he met the appellant in the woods, and conversed with him for about 15 minutes; that he saw smoke boiling up, four barrels, and something that looked like an oil tank, and a long trough near the oil tank. Raymond Coulter and Wallace Bland came out of the woods with a load of pine. The witness said, “Raymond, X have got you,” and he said, “Yes, G-d d — —n it; you have got me. Yes, G-d d — -n it; you have got us. Get down and come over and look at it.” When the witness got there he said, “What is that in the barrels there?” to which Raymond replied, “That there is beer of some kind, or brew that they made shinny out of, and the other outfit is what they put it in to cook it off.” There was a barrel of water that they ran it out of, and there was a cup setting in front of the barrel. The witness sat there and looked and talked with Raymond. He said that his whisky never bothered his kids because he sold it all back the other way. The witness then asked him' if he knew it was against the law to sell the stuff, and he said: “Yes; he knew that, and he always wanted.his boys to do better than he did, and he said he was going to quit it before his boys got big enough. He also said that 4,barrels would make 16 gallons, and that it would take until morning to boil it off.” The witness started to go, when Raymond said: “No; stay there a while and we would have something to drink.” The witness told him “No,” but he said, “If you will go to the house, I have got a gallon up there, and I will give you a drink.” Raymond Coulter said that he had made a little, and had 6 gallons left; that he had sold 2 gallons and drank a gallon; that he sold 'it for $4 a quart. Bland told the witness to stay a while, and it (the whisky) would be better, and it would soon run off. The witness went back over there that day, and saw Wallace Bland again. He and Raymond Coulter were sitting on the edge of the hill. Raymond went with the witness to see some negroes, and Wallace Bland remained at the still. When the witness first went there, Wallace Bland came with a load of pine; he saw him do nothing except put some pine under the boiler. There was a fire, and the still was in operation.

The witness Andrews testified that a small quantity of the liquid was tasted and smelled by him, and that it tasted and smelled like whisky. Apparently there was sufficient evidence to justify the jury in finding that the appellant, Bland, and Raymond Coulter were engaged in manufacturing whisky. If this be correct, it was unnecessary that a specific charge be given the jury to determine whether it was intoxicating. Proof that it was whisky would establish the fact that it was intoxicating without further inquiry. Aston v. State (Tex. Cr. App.) 49 S. W. 385; Mayo v. State, 62 Tex. Cr. R. 110, 136 S. W. 790; Uloth v. State, 48 Tex. Cr. R. 295, 87 S. W. 823; Rutherford v. State, 49 Tex. Cr. R. 21, 90 S. W. 173; Words & Phrases, Second Series, vol. 2, p. 1182.

The testimony of Andrews sufficiently connects the occasion with that testified to by the witness Davis to render it competent as a circumstance bearing upon the nature .oÉ the article ma'de. Andrews, in his testimony, states a date identical with that mentioned by Davis, and says that, at the time he saw the jug containing the - liquid which he described as “smelling and tasting like whisky,” he saw Davis at the Burrus’ Place in San Augustine county.

Davis testified that, after seeing the still, and having the conversation which has been detailed, he went to a field and saw Andrews, and together they went back to the still. The court was not in error in refusing to withdraw this testimony from the consideration of the jury.

Complaint is made of the refusal of the court to exclude that part of Davis’ testimony which details the conversation with Raymond Coulter. In approving the bill making this complaint, the trial judge says that no objection was made to the introduction of this testimony, and it appears from the bill that, in connection with this explanation by the trial court, the first time it was challenged was in a special charge requesting the court to exclude it. The declarations of Coulter referred to in the bill apparently were made in the presence of the coeonspirator Bland at the time and place where they were jointly operating a still for the purpose of manufacturing the liquor in question, and while the liquor was in process of making. His declarations, it seems, would not have been inadmissible; especially as they were made directly in the presence of Bland, and at the time the fire which he had replenished, and which was used in cooking the liquid they were making, was burning. Coulter at the time of making the declarations was in possession at the still of the fruits of the crime; that is, the still and the machinery with which they were making it, and such of the liquid as was there. His coconspirator was also in possession, and was present at the time. The declarations of Coulter implicated Bland, and invoked from him no denial of his guilt, but, on the contrary, such part as he took in the conversation tends to confirm his connection with the manufacture of the whisky. We have been referred to no precedents, and are aware of none, which would, under the circumstances detailed, justify us in declaring the action of the trial court, as revealed by the bill, erroneous.

A special charge requesting the submission of the law of circumstantial evidence was requested, but it does not appear that any exception was reserved to its refusal.

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

On Motion for Rehearing.

LATTIMORE, J.

in appellant’s ’motion for rehearing it. is urged that the evidence is not sufficient to support the conviction. A re-examination of the statement of facts makes' it evident that, when the principal state witness reached the scene of the alleged manufacture of intoxicating liquor, appellant was present, intoxicating liquor was in process of manufacture, a fire was burning under a boiler, appellant was approaching with; a load of pine wood. The white man who was with him later, put some of said wood on the fire. The apparatus visible at the place was described by the witness; the working of said apparatus was explained to witness by the white man in the presence and hearing of appellant; later appellant asked said witness to remain at the place a while, and “it would be better,” and “it would soon run off.” Later in the day said witness returned to the place and appellant was still there, sitting beside the other man mentioned. This other man went with witness away from said place, leaving appellant there at the still. We would not feel inclined to hold that these facts present a record so destitute of sufficient testimony as to make it appear that the verdict of guilt was without support. There were no exceptions to the court’s charge.

A special charge submitting the law of circumstantial evidence was refused, but, as far as the record discloses, such refusal was not objectionable to appellant, as there appears no notation by the trial court on said refused charge of the fact of any exception, nor is such refusal made the subject of a separate bill of exceptions. Nichols v. State (Tex. Cr. App.) 238 S. W. 232; Barrios v. State, 83 Tex. Cr. R. 548, 204 S. W. 326; Fry v. State, 86 Tex. Cr R. 73, 215 S. W. 560. We seriously doubt any possible injury from the* refusal of such charge in any event in view of the facts above mentioned.

To constitute guilt of the manufacture of said liquor, it would not be necessary to show that the liquor or the apparatus belonged to the accused, nor' that he was the principal actor in such manufacture, nor that he personally did each thing necessary to convert the raw material into the finished product. His presence and proof of the actual performance by him of any act necessary in the manufacture would meet all the requirements of the law of principals.

Being unable to agree with appellant in his motion for rehearing, same will be overruled. 
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