
    HIGHTOWER v. STATE.
    (No. 11120.)
    Court of Criminal Appeals of Texas.
    Nov. 9, 1927.
    1. Criminal law <&wkey;792(2) — Evidence held to warrant submission of law of principals, in ‘ prosecution for possessing equipment for manufacture of intoxicating liquor.
    Evidence, in prosecution for possessing equipment for manufacture of intoxicating liquor, that two other persons were present at time and place when defendant is charged to have possessed the equipment, justified submission of law of principals.
    2. Criminal law <&wkey;814(l7) — Refusal to submit law of circumstantial evidence in prosecution for possessing equipment for manufacture of intoxicating liquor held error.
    In prosecution for possessing equipment for manufacture of intoxicating liquor, failure to submit law of circumstantial evidence held error, where only evidence was that defendant was present at place where equipment was located, that he ran away, and that he was seen to pour something into a keg.
    Appeal from District Court, Panola County; R. T. Brown, Judge.
    Oscar Hightower was convicted of possessing equipment for manufacture of intoxicating liquor, and he appeals.
    Reversed and remanded.
    J. G. Woolworth and B. W. Baker, both of Carthage, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for thd State.
   LATTIMORE, J.

Conviction for possessing equipment for the manufacture of intoxicating liquor; punishment, one year in the penitentiary.

There are three bills, of exception in the record. We are not in accord with appellant’s complaint of the charge of the court for its submission of the law of principals. Erom the testimony it appears that two other parties we^e present at the time and place when appellant is charged to have possessed the equipment in question.

There was an exception taken to the charge of the court for its failure to submit the law of circumstantial evidence. We are of opinion that the case rests upon that character of testimony. Officers had found some mash and a still. After an absence, they returned to the spot, and some of their number went near enough to satisfy themselves that the still was in operation. The officers then advanced upon the party at the still. Three of the posse testified. One of them said that, as he ran toward the still, he saw appellant pouring corn whisky into a five-gallon, container. In another place the same witness testified that what he saw the defendant do was that he was pouring, “I guess it was whisky — it was — in that little copper outfit.” In another place the witness testified:

“Yes; I just saw him as I was running up: Asked if it was my impression that he was pouring something in this keg, I will say he was pouring something in there; I don’t know what it was; I guess it was whisky; I wouldn’t say» it was whisky — well, I will say it was whisky, it smelled like that.”

Neither of the other two officers who testified gave evidence of anything done or said by appellant, except that he ran away from the place where the still was, waded a creek, and got away. It was shown that there were two other men at the still beside appellant. On this testimony the question arises as to the extent to which same goes to establish the factum probanduin in the case; i. e., the possession on the part of appellant of equipment for the manufacture of intoxicating liquor. That he was present at the place where the equipment was located is beyond dispute. He testified that he had just walked up to' the place and was in the act of taking a drink when the officers appeared and arrested him. No witness testified to any statement or admission on the part of appellant of possession or control of the equipment. He was not seen to carry it to the place where found, or to adjust it, or move it, or do any other act indicating control thereof same as herein set out. The most that can be said is that he was present, which was a circumstance; that he ran away, which is another circumstance ; that he was seen to pour something which one officer thought was whisky into a keg or copper outfit or container — whatever it was. It occurs to us that plainly the question of possession, that is, the care, control, and management of the equipment, was an inference to be. drawn from these circumstances, and, being such inference, the case is necessarily one of circumstantial evidence. Mr. Branch, in, his Annotated P. O. § 2478, makes quite a clear statement of what we regard as a sound proposition of law. See Weaver v. State, 96 Tex. Cr. R. 273, 257 S. W. 253; Ellison v. State, 99 Tex. Cr. R. 501, 270 S. W. 860; Berry v. State, 104 Tex. Cr. R. 114, 282 S. W. 594.

Believing the learned trial judge feU into error in refusing to submit the case to the jury upon the law of circumstantial evidence, the judgment will be reversed, and the cause remanded. 
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