
    FREEMAN v. STATE.
    (No. 7477.)
    (Court of Criminal Appeals of Texas.
    Feb. 21, 1923.
    Rehearing Denied March 21, 1923.)
    1. Intoxicating liquors <§=236(19) — Evidence held to sustain conviction for manufacturing.
    Testimony of an accomplice as to the manufacture of intoxicating liquor by himself and accused, with testimony by the officers that they found a still in defendant’s smokehouse bearing evidence of recent operation, and one that was older, and also found on the premises liquor and mash in process of fermentation, held sufficient to support a conviction for manufacturing.
    2. Criminal law <§=419, 429(10) — Statements by others relative to operation of still held hearsay.
    Statements offered on behalf of accused made by other parties relative to their connection with the still which accused was charged with operating, and to the making of liquor on his premises, would be hearsay and incompetent.
    3. Criminal law <@=508(2) — State cannot be required to disclose agreement with accomplice.
    It was not error for the court to refuse to compel the state to disclose to the jury what agreement they had made with the accomplice witness where accused was accorded the fullest liberty of inquiry of the witness on cross-examination.
    4. Criminal law <@=683(I) — Evidence accused had paid the fine of .one he claimed was operating the still competent in rebuttal.
    Where defendant sought to prove that the still in question was being managed by another, it was competent for the state, in rebuttal, to prove that, when the other was convicted of making and" selling whisky, defendant paid his fine.
    On Motion for Rehearing.
    5. Intoxicating liquors <@=233(2) — Proof accused was frequently intoxicated held competent to prove manufacturing.
    In a prosecution for manufacturing intoxicating liquor, proof that accused was intoxicated on various occasions when he came back from the farm where the still was subsequently found, and of which he had charge, is competent.
    6. Criminal law <@=400(2) — 'Testimony accused had advanced money to another with which to pay his fine is best evidence.
    Testimony by a witness that accused had advanced to another, whom he charged with operating the still found on his premises, the money with which to pay the other’s fine when
    
      convicted of manufacturing, is no.t subject to the objection that it is not tbe best evidence, since tbe record of the other’s conviction would not show from whom the money was obtained.
    Appeal from District Court, Liberty County; J. L. Manry, Judge.
    Gilbert Freeman was convicted of manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    See, also, 245 S. W. 683, 684.
    W. T. Norman, of Liberty, and Howth & O’Mel, of Beaumont, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Liberty county of manufacturing intoxicating liquor, and his punishment fixed at one year in the penitentiary.

There appears in the record the testimony of an accomplice who fully related facts pertaining to the manufacture of intoxicating liquor by himself in conjunction with appellant. Officers testified that on the day of appellant’s arrest they went to his place, and in his smokehouse found a still bearing evidence of recent operation, and one that was older; also that they found on the premises liquor and mash in process of fermentation. The evidence amply supports the verdict.

Appellant complains by certain bills of exception of testimony to the effect that he had been seen on several occasions at' or about the time of his arrest under the influence of liquor, drunk, and in an intoxicated condition. We would not deem such evidence of an immaterial character.

Appellant complains in his bill of exceptions No.-of the refusal of the court

to permit him to prove statements made by certain other parties relative to their connection with the still and the making of liquor on appellant’s premises. 'Such evidence would be hearsay, and therefore incompetent.

There is a bill of exceptions complaining of the refusal of the court to compel the state to disclose to the jury what trade or agreement they had made with the accomplice witness. We know of no authority upholding the contention of appellant in this matter. The court accorded appellant the fullest liberty of inquiry of said witness upon cross-examination, and it does not appear that any effort of his to ascertain the facts desired in this regard was in any wise interfered with or prevented by the court.

Appellant endeavored to prove that the still in question was being operated and managed by one .Krit Douglass and others. In'its rebuttal the state was permitted to prove that said Krit Douglass was arrested and found guilty of making and selling whisky in the federal court at Beaumont, and that appellant paid his fine. Appellant having sought to evade punishment growing out of supposed manufacture of intoxicating liquor on his part by attempting to show that such liquor was manufactured, and the apparatus found on appellant’s premises controlled, by said Douglass, we think evidence showing or tending fairly to show the interest of appellant in Krit Douglass and the connection of the two men with each other in relation to the manufacture and sale of such liquor would be admissible. We think the state entitled to prove that appellant paid the fine for Douglass.

Mnding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

Appellant insists that we erred in not holding erroneous the admission of the testimony of the witness Sherman that appellant was drunk on various occasions when he came back from his farm. The charge was the manufacture of intoxicating liquor. The paraphernalia for making such liquor was unquestionably found on the farm of appellant’s wife, of which he had charge. It would scárcely need argument to show it would be admissible to prove that other parties who went to appellant’s farm where said still was located went away in an intoxicated condition. We see no reason for doubting the admissibility of such testimony. The Venn Case, 89 Tex. Cr. R. 537, 232 S. W. 822, cited by appellant, is not in point. This court held that the testimony regarding the admission of a still found in possession of appellant five months from the time he was charged with selling the liquor, no connection whatever being shown between the two, shed" no light upon the charge against the accused, and was inadmissible. We are unable to see the similarity of Stanchel v. State, 89 Tex. Cr. R. 358, 231 S. W. 120. In that case appellant was charged with robbery at night without the use of a firearm. The state proved over his objection that at the time of his arrest he had on his person an automatic pistol. This was a separate and distinct offense, and such proof seemed in no way to shed light on any issue involved in the robbery charge, and this court upheld the inadmissibility of such testimony. Of similar import is Watson v. State, 88 Tex. Cr. R. 227, 225 S. W. 753, also cited, by appellant.

Appellant insists that the testimony of a witness to the effect that appellant had paid a fine for Krit Douglass in the federal court at Beaumont for violating the prohibition law was inadmissible because there was better evidence, to wit, the records of said court, of said fact. We might observe that no objection was offered to this testimony on the ground that it was secondary evidence, but we further note that the records would not be evidence of the fact that appellant paid tlie fine for Krit Douglass. The witness testified that appellant got the money from him with which to pay said fine.

Being unable to agree with either contention made by appellant in this motion, same is overruled. 
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