
    SCHWAB et al. v. STATE.
    (No. 9668.)
    (Court of Criminal Appeals of Texas.
    Dec. 23, 1925.)
    1. Criminal law <®=3407( I) — Defendant’s testimony as to why she did not tell arresting officers that she was making whisky for medicinal purposes held erroneously admitted.
    In trial for manufacturing intoxicating' liquor, admission of defendant’s testimony on cross-examination that she did not tell arresting officers that she was making whisky for medicinal purposes because they did not ask her heldi error; law not requiring her to make any statement to officers.
    2. Criminal law <§=>369(6) — Admission of testimony as to sale of whisky before date of alleged manufacture held not error.
    In trial for possessing whisky for sale and possessing equipment for manufacturing whis-ky, as well as for manufacturing intoxicating! liquor, of which defendants were convicted, admission of defendants’ and state’s witness’ testimony as to sale of whisky to such witness four months before alleged date of manufacture helA not error, especially where court sufficiently instructed jury to consider testimony only on issue of defendants’ intent in manufacture.
    Commissioners’ Decision.
    Appeal from District Court, Lipscomb County; W. R. Ewing, Judge.
    Henry and Gertrude Schwab were convicted of manufacturing intoxicating liquor,- and they appeal.
    Reversed and remanded.
    Frank Willis, of Canadian, for appellants.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BAKER, J.

The appellants, Henry and Gertrude Schwab, were jointly charged and convicted' in the district court of Lipscomb county of the offense of unlawfully manufacturing intoxicating liquor, and their punishment each assessed at two years in the penitentiary.

The record discloses that the officers made a raid and searched the house occupied by the appellant and his wife, and found a still in operation, and about a half a gallon of whisky, and no one present at the house except the appellant’s wife, Gertrude Schwab, at the time; Henry Schwab being out in the field hauling feed. They were both arrested by the sheriff and his deputies, and the- still was confiscated. .The appellant Gertrude Schwab took the stand and admitted manufacturing the whisky, but contended that same was for medicinal purposes. This is a sufficient statement of the facts for a basis of this opinion.

By bill of exceptions No. 1 appellants complain of the action of the court in permitting the district attorney, over their objection, on cross-examination of the appellant, Gertrude Schwab, relative to the time of being arrested by Sheriff Roberts, to ask her the following question:

“When Ben Roberts took you away from the house that morning, why didn’t you tell him you were making whisky for medicinal purposes?”

To which the appellant answered:

“He didn’t ask, that is the reason; if he had asked, I would have told him.”

The district attorney further asked said witness:

“When they found that still there and they arrested you, why didn’t you tell them you were making it for medicinal purposes?”

To which she replied:

“They didn't ask, and for that reason I didn’t have no reason to tell them.”

The appellants contend that this was reversible error, because said appellant was under arrest at the time, and the state-had no right to use her silence against her, and that the law did not require her to make any statement to the arresting officers. We think the learned trial judge was clearly in error in admitting this testimony under the rule laid down by this court in the cases of Thompson v. State, 88 Tex. Cr. R. 29, 224 S. W. 892; Ripley v. State, 58 Tex. Cr. R. 489, 126 S. W. 586; Ritter v. State, 92 Tex. Cr. R. 247, 242 S. W. 469; Johnson v. State, 100 Tex. Cr. R. 215, 272 S. W. 783; Skirlock v. State, 100 Tex. Cr. R. 178, 272 S. W. 782.

By bills of exceptions 2 and 3 complaint is made of the action of the court in permitting the state to ask the appellant Gertrude Schwab relative to a sale by her and her husband about the 7th day of August, 1924, of whisky to the state’s witness, one Scarborough, and to the state’s permitting said Scarborough to testify to the purchasing of said whisky from said appellants, because it is contended that same is too remote, and does not shed any light on the alleged manufacturing of the whisky in question on the date of the arrest on December 4, 1924, and was inquiring into extraneous matter. The indictment in this case contained two counts other than the one upon which appellants were convicted, charging the possession of whisky for sale and possession of equipment for manufacturing said whisky. We are of the opinion that there was no error in the admission of said testimony, and the court in his charge to the jury in this case sufficiently instructed the jury that they could not convict the appellants of said alleged sale complained of, and that the same could only be considered with reference to the intent of the said appellants, if at all, in the manufacturing of the whisky in con-, troversy.

For the errors above discussed, we are of the opinion that the judgment of the trial court should be reversed and remanded, and it is accordingly so ordered.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
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