
    WILKERSON v. STATE.
    (No. 11147.)
    Court of Criminal Appeals of Texas.
    Nov. 16, 1927.
    Rehearing Denied Jan. 4, 1928.
    1. Criminal law <§=>814(17) — 'Where testimony showed accused was in possession of mash, carrying it to operating still, it was not necessary to charge on circumstantial evidence.
    In liquor prosecution, where testimony made it plain that accused was in actual physical possession of mash of character charged in indictment, and was actually carrying it to still, and still was in actual operation running out whisky, inference of guilt does not rest upon circumstances, and it was not necessary to charge on circumstantial evidence.
    2. Criminal law <§=>351 (3) — Flight is always provable as circumstance of guilt.
    Plight is always provable as circumstance of guilt.
    3. Criminal law <§=>407(2) — Asking accused why he did not stop and deny ownership of still held not objectionable as evidence of silence without obligation to speak.
    In liquor prosecution, in which accused claimed he did not own still but was present by accident, cross-examination of accused, in which he was asked why he did not stop and tell officers that he did not own still, 'held not objectionable as using Ms silence against him when he was under no duty to speak, but was admissible as a circumstance attendant upon his flight.
    4. Criminal law <§=>351 (3) — In liquor proseeution, flight of accused from still was provable to rebut theory that presence was áccidental and innocent.
    In liquor prosecution, precipitate flight of accused from site of still without saying-anything was provable as circumstance, in rebuttal of his theory on the trial that his connection with and presence at still was altogether accidental and innocent.
    On Motion for Rehearing.
    5. Intoxicating liquors <§=>236(6!/2) — Where accused was positively identified as person carrying mash to still, case was not one of circumstantial evidence.
    Where accused, charged with unlawful possession of mash for manufacture of liquor, was arrested at site of still and was positively identified as person who kept coming to mash barrel with bucket and getting mash and carrying it to still, case was not one of circumstantial evidence.
    6. Intoxicating liquors <§=>239(1) — Instruction to acquit if accused had nothing to do with still fully presented defense that he was bystander.
    Where officers arrested accused at site of still, and accused admitted being at place where still was located but claimed he had just arrived and had no connection with it, instruction that, if jury believed accused had nothing to do with still but was bystander, they should acquit, fully presented defense relied on, against objection that it should have directed acquittal if jury had reasonable doubt as to defendant being at still.
    Appeal from District Court, Panola County; R. T. Brown, Judge.
    Ed Wilkerson was convicted of the unlawful possession of mash for the manufacture of liquor capable of producing intoxication, and he appeals.
    Affirmed.
    J. G. Woolworth and B. W. Baker, both of Carthage, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, the unlawful possession of mash for the manufacture of liquor capable of producing intoxication; penalty, one year in the penitentiary.

The state’s evidence shows that the officers of Panola county found in a woods pasture three barrels of mash, and overheard at that time a conversation between appellant and one Gus Gibson to the effect that their stuff was not ready to cook that night but would be by Sunday or Monday night. This was about Saturday night or Sunday morning. The officers later returned on either Monday night or Tuesday night to this same place, and Officer Gholson testified to what occurred there as follows:

“Yes; I went right up to where the fire and the still were, and I found the still and the mash in the still and the still in operation, fire under it and all. I found one gallon and three quarts Of whisky. Asked how much mash I found, I will say there had been three barrels, and he had nearly one barrel in the still, made up, you might say, two barrels, except what had been delivered to the still. * * * This defendant here kept coming to the mash barrel, and we could see him coming there with a bucket. He would begin dipping in the barrel and getting the mash and carrying it to the still. -* * * I slipped on up closer to the mash barrel, and as he come back after the other mash he run right up on us. Of course he was too close to us when he seen us to hide, and we hollered at him, and he throwed his bucket down, and that is when we had the race. I ran him before I caught him about 150 or 200 yards. I caught him right down in the bed of the branch in the water.”

The appellant denied cárrying the mash to the still, and denied dropping the bucket, but admits that he was there present and did run and was caught by the officers. The still and mash were not on the premises owned or controlled by appellant. He claims to have been at the place by accident, and to have been there only a few minutes and to have had no connection with or knowledge of the still and mash.

Appellant insists that the court should have charged upon circumstantial evidence. The quoted testimony and other testimony of like character makes it plain, we think, that appellant was in actual physical possession of mash of the character charged in the indictment. He was actually carrying it to the still, and the still was in actual operation, running out whisky. The inference of guilt of appellant does not rest upon any circumstances or set of circumstances, and we do not believe that the court erred in failing to charge on circumstantial evidence. Arzate v. State, 99 Tex. Cr. R. 534, 270 S. W. 1017.

It appears that the appellant fled when accosted by the officers. Flight is always provable as a circumstance of guilt. Upon cross-examination, the state, referring to appellant’s defensive theory that he did not own the still and was there present by accident, asked him why he did not stop and tell the officers that this outfit did not belong to him, and he was required to answer that he did not then stop and tell the officers that the outfit was not his, and that the reason he did not do so was because he did not want to be around there. Complaint is made of the admission of this testimony because his silence was admitted in evidence against him at a time when he was under no duty to speak. The evidence is but another way of stating that the defendant fled without saying anything. It was a circumstance attendant upon his flight, which is always provable against appellant. Branch’s Penal Code, p. 78, and authorities there cited.

“The movements, appearance, and bearing of the accused and his behavior when charged with a crime or confronted with the consequences or with the scene or surroundings of the crime are always relevant.” Underhill’s Crim. Evidence, par. 202.

We think the precipitate flight of appellant without saying anything was provable as a circumstance in rebuttal of his theory on the trial that his connection with- and presence at the still and mash was altogether accidental and innocent.

We have examined the remaining bills of exception, and, finding no error in any of them, the judgment is affirmed.

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.

On Motion for Rehearing.

LATTIMORE, J.

Appellant is dissatisfied with our holding against him in his contention that this is a case of circumstantial evidence. The facts have again been carefully reviewed. In addition to those stated in the original opinion, attention is called to the fact that the state witnesses testified that they saw appellant dipping mash out of a barrel and carrying it to the still just prior to the time of his arrest. A witness testified that appellant kept coming with a bucket to the mash barrel and getting the mash and carrying it to the still. The identification of .appellant was positive. .The testimony as to his personal possession of, and the exercise of care, control, and management of the mash, was positive. We see no reason for believing the case one of circumstantial evidence.

It is urged that we did not consider appellant’s second and fourth bills of exception. Said bills complain of the charge of the court, asserting that the court should have told the jury that, if they had a reasonable doubt of the -fact that the person seen carrying the mash from the barrel to the still was appellant, they should acquit; and the further proposition that, if the jury had a reasonable doubt of the fact that appellant was at another and different place, they should acquit. That appellant was at the place is unquestioned. The officers arrested him there. The officers testified positively that appellant was the party seen by them carrying the mash. Appellant admitted being at the place where the still and mash were located, but claimed that he had just arrived, and had no connection with said articles. The court gave the jury an affirmative instruction upon this affirmative defense. He told them that, if they believed appellant had' nothing to do with said mash or still, was not exercising possession' or control of said property, but was merely a bystander and had just happened up there on his way to Gus Gipson’s place, then the jury should acquit, and, if they had a reasonable doubt as to any one of said propositions, they should acquit him, and, further, if they had a reasonable- doubt as to defendant being at the place raided by the officers at said time, they should acquit.

This seems to us to fully present the defense relied upon, and the motion for rehear-' ing will be overruled. 
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