
    DAVIS v. STATE.
    (No. 9621.)
    (Court of Criminal Appeals of Texas.
    Dec. 9, 1925.
    Rehearing Denied Jan. 20, 1926.)
    1. Intoxicating liquors <§=236(19)— Conviction for possessing equipment for manufacture justified.
    Evidence held to justify conviction for possessing equipment for manufacture of intoxicating liquor.
    2. Intoxicating liquors <&wkey;233(I)— Admission of testimony of finding bottle containing whis-ky outside place where raid was made held not error.
    In prosecution for possessing equipment for manufacture of intoxicating liquor, admission of testimony that, on morning following raid, bottle which contained or had contained whisky was found outside back door of house where raid was made, under some rags, held not error.
    3. Criminal law <&wkey;459 — Sheriff held qualified to testify that equipment was sufficient for manufacturing liquor.
    Sheriff held qualified to testify that equipment possessed by defendant was sufficient for manufacturing liquor, where he testified as to his observations of similar matters.
    On Motion for Rehearing.
    4. Criminal law <@=750 — Charge that jury should consider only certain specific count named held not error.
    In liquor prosecution, court did not err in charging that there were two other counts of named character in indictment which were discarded by state, and that jury should consider only certain specific count named.
    5. Intoxicating liquors <§=239(l) — Instruction, defining “possess” and “still,” held proper.
    Instruction, defining “still” as equipment intended for use and capable of being used to manufacture liquor, etc., and that “possess” meant actual personal control, care, and management of the property, alone or jointly with others, and that person charged need not be owner, held proper.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Possess; Still.]
    6.Intoxicating liquors <§=239(1) — ¡Instruction, submitting law of principals, held proper.
    In liquor prosecution, instruction, submitting law of principals, and stating that if accused, alone or with another, committed offense charged, jury should find him guilty, held proper.
    Appeal from District Court, Kaufman County; Joel R. Bond, Judge.
    Titus Davis was convicted of possessing equipment for manufacture of intoxicating liquor, and he appeals.
    Affirmed.
    Wynne & Wynne, of Kaufman, for appellant.
    Sam D. Stinson, .State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.-
   LATTIMORE, J.

Upon trial in the district court of Kaufman county for possessing equipment for the manufacture of intoxicating liquor, appellant was found guilty, and his punishment fixed at one year in the penitentiary.

Officers raided Lon Tolbert’s house, searching for liquor violations. The raid was made about midnight. As the officers approached Tolbert darted out of his barn near the house. One officer gave chase; the other going on to the house where a light was observed in the kitchen. About the time this officer got to where he could see through the window, a shot was fired by the other officer, who was pursuing Tolbert. When this was heard, appellant, who, according to the testimony of the officer, was in the kitchen, grabbed a can on the stove and tried to lift it off. The can was later found to contain mash. The officer shouted at him, and appellant ran. The officer headed him off, and appellant ran back in the house,’ and in a moment or two was captured by the officers. The equipment, the sufficiency- of which for the purpose of manufacturing liquor was testified to by the officers, was found, and included the can above referred to. The case was submitted to the jury upon the law of circumstantial evidence. We think the evidence sufficient to justify the jury’s conclusion.

There were two bills of exception, one of which complains that, on the morning following the raid, the officers testified that they went back to the place, and found a bottle just outside the back door of Tolbert’s house, under some rags, which contained or had contained whisky. There was no error in the admission of this testimony.

The second bill complains that the sheriff was permitted to testify that the equipment was sufficient for the purpose of manufacturing liquor. Having testified to his observation of similar matters, the sheriff was properly allowed to give the testimony objected to.

No error appearing in the record, the judgment will be affirmed.

On Motion for Rehearing.

The complaint now is of the charge of the court. Same is too long to copy in this opinion those parts complained of, but each of them has received our careful consideration in the light of appellant’s complaint both on original presentation and in the motion for rehearing.

We do not think it erroneous for the court to have stated in his charge to the jury the fact that there were two other counts of named character in the indictment which .were discarded by the state, and that the jury should consider only a certain specific count named.

The court’s definition of a still was entirely proper, as was his definition of what is meant by “possess.” The court told the jury that by “still” was meant equipment intended for use and capable of being used to manufacture spirituous, vinous, or malt liq-ours, etc. He told them that “possess” under this statute means the actual personal control, care, and management of the property, either alone or jointly with others, and that it is not necessary that the person charged he the owner.

Under the facts in this ease, the court was correct in submitting the law of principals and in telling the jury that if the accused, acting either alone or with one Lon Tolbert, committed the offense charged, they should find him guilty.

We see no reason to change our conclusion as to the sufficiency of the evidence in this case.

The motion for rehearing will be overruled. 
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