
    LAND v. STATE.
    (No. 7164.)
    (Court of Criminal Appeals of Texas.
    Nov. 22, 1922.
    Rehearing Denied Feb. 14, 1923.)
    1. Criminal law <§=3371 (10) — Proximity of illicit still held admissible on issue of transportation f.or unlawful purpose.
    Proximity to where defendant was arrested in a vehicle containing whisky, of an illicit still in a practically uninhabited part of the country, held admissible on the issue of unlawful purpose,of transportation.
    2. Criminal law <§=>673(5) — Instruction limit- j ing use of evidence of other offense is proper.
    Where evidence of another offense which might be improperly used against defendant is introduced, it is proper to forestall such misuse by a charge limiting its use to the purpose for which it was admissible.
    3. Criminal law <§=>763, 764(17) — Instruction, limiting use of evidence of other offense not to be on weight of evidence.
    The restrictions against misleading the jury by a charge on the weight of the evidence are to be observed in limiting use of evidence of other offense, introduced, to the purpose for which it was intended.
    4. Criminal law <@=>763, 764(17.) — Instruction limiting use of evidence of other offense held not on weight of evidence.
    Instruction limiting the use of evidence of anothei offense held not on the weight of evidence, it not intimating the judge entertained any impression with reference to its weight.
    5. Intoxicating liquors <§=>131 — Transportation, though not for sale, unlawful.
    
    Unlawful transportation of liquor under the Dean Law (Vernon’s Ann. Pen. Code Supp. 1922, art. 588¼ et seq.) is not limited to transportation for purpose of sale.
    On Motion for Rehearing.
    6. Criminal law <§=>369(15), 370 — That defendant was going to or from an illicit still held admissible to show defendant’s knowledge and guilty connection with illegal transportation.
    That defendant; with others, in an auto containing whisky, was going to or from an illicit still near by in a practically uninhabited part of the country, ¡held admissible to show his guilty connection with the liquor in the car, his guilty knowledge of its possession, and that it was being unlawfully transported.
    7. Criminal law <§=>698(1) — Objection to admission of testimony necessary for subsequent complaint.
    Defendant may not by failure to object acquiesce in admission of evidence and afterwards ^omplain of it.
    Appeal from District Court, Knox County; J. H. Milam, Judge.
    J. A. Land was convicted of unlawful transportation of intoxicating liquors, and appeals.
    Affirmed.
    A. C. Nicholson and Cecil Storey, both of Vernon, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for the unlawful transportation of intoxicating liquor; punishment fixed at confinement in the penitentiary for three years.

The offense took place on a date prior to the amendment of the so-called Dean Law by the Acts of the Thirty-Seventh Legislature, chapter 61 (Vernon’s Ann. Pen. Code Supp. 1922, art. 588¾ et seq.).

The appellant, one Claybrook, and one Glover were together in an automobile in which there was an empty demijohn, a three-gallon jug of whisky, and a quart of whisky. They were arrested while traveling upon the road. Claybrook was driving the car. The arrest took place in a remote part of Baylor county near Coffee creek, a tributary of the Wichita river. The country was rough and broken and without inhabitants, except a person engaged in riding a line fence, who lived some two miles distant. Near the point at which the arrest was made there was a camp and a still.

There was objection to the evidence concerning the still, which we quote from the bill of exceptions:

“The witness E. A. N. O’Neil was permitted to testify as follows: ‘Close to where defendant was arrested, we found a tent, a camping outfit, and closer to where they were arrested we found a tent, a lot of mash. There was trails around that tent there, as if somebody had been around there quite a bit.' I should judge that it was something like 300 yards or more up the creek from the tent, I found, I think, that it was 9 barrels of mash and part of a still. This mash was about 200 yards from where the parties were arrested, in a western direction. As to the still, I| will state, in my judgment, it is what I would call a gasoline drum, about a 50-gallon capacity, with a great big place cut out of the middle of it, and then what I would call a milk can, at the bottom of it was a big pipe with a cut-off valve to it. There was some buckets and other things around there, a tub or two. I think some sugar, and meal.’ ” |

The appellant resisted the introduction of this testimony upon the ground that it wa? irrelevant, incompetent, immaterial, and prejudicial, and not binding upon the defendant, nothing having been shown to have connected him with the tent near the articles described, and for the further reason that appellant was on trial for transporting and not for manufacturing intoxicating liquor, and that there was no connection shown between the alleged unlawful transportation and the still, .and other things connected therewith. The arrest was made and the" still located in a remote part of the county, where it was broken and rough and where there were no people living save a fence-line rider, who camped some two miles distant.

The trial was conducted upon the theory that the burden was upon the state to prove that the intoxicating liquor was transported for an unlawful purpose, and at the request of the appellant the court so instructed the jury. The evidence in question we deem relevant upon this issue. Whether the still was operated by the appellant and his companions or by some one else and the conditions surrounding it and its proximity to where the arrest was made suggest that it may have been the source from which the whisky which was in the possession of the appellant and his companions was obtained. If the whisky was obtained from an illicit still, whether manufactured by the appellant or some one else, it would tend to show that its transportation was for an unlawful purpose.

The appellant introduced testimony to the effect that the sister of Claybrook was an invalid and required alcoholic stimulants for medicinal purposes. He also introduced evidence tending to explain his presence in the vicinity, both on the occasion of the arrest and prior thereto on the theory that he was a fisherman, and that it was in the pursuit of that avocation that he frequented the locality in which the arrest was made. The court instructed the jury on both of these affirmative defenses, and also gave an instruction to the effect that it was essential that the .proof show not only that the appellant was in the ear in which the whisky was found, but that it must show that he had it under his actual care, control, and management in conjunction with his companions. The court also gave this instruction:

“The testimony introduced in this ease with reference to a tent, and mash, barrels, and still, near where the defendant was arrested, was only admitted for" one purpose, and one purpose only, and that is as it may or may not bear upon the question as to the purpose for which the defendant was transporting said whisky, if you find that he was transporting said whisky, and you will not consider said testimony for any other purpose.”

Of this the appellant complains on the ground that it was on the weight of the evidence. The rule is well settled that when there is introduced evidence of another offense which might be improperly used against the accused, it is proper for the court to forestall such misuse of the testimony by an appropriate charge limiting the testimony to the purpose for which it was admissible. Carroll v. State (Tex. Cr. App.) 58 S. W. 340, and numerous other cases listed in Vernon’s Tex. Crim. Stat. vol. 2, p. 443, note 33. In framing a charge of this character, the restrictions! against misleading the jury by a charge upon the weight of the evidence are to be observed. Stull v. State, 47 Tex. Cr. R. 549, 84 S. W. 1059; Branch’s Ann. Tex. Penal Code, § 192; James v. State, 86 Tex. Cr. R. 602, 219 S. W. 202. We fail to discern, however, in the charge quoted any transgression of this rule. The instruction, if we properly comprehend it, does not in any sense intimate to the jury that the trial judge entertained any impression with reference to its weight. See authorities in Branch’s Ann. Tex. Penal Code, § 190.

The point made against the indictment that it is not unlawful to transport intoxicating liquor save for the purpose of sale has been decided adversely to the appellant’s contention. Stringer v. State (Tex. Cr. App.) 241 S. W. 159; Crowley v. State (Tex. Cr. App.) 242 S. W. 472.

We deem the evidence sufficient to support the conviction.

The judgment is therefore affirmed.

On Motion for Rehearing.

LATTIMORE, J.

As affecting the merits of appellant’s motion for rehearing we make a statement of the facts supplemental to that contained in our original opinion. Appellant and his two companions were arrested at night with) the. whisky in question in their car. It is not clear whether they were going down to the point where there was presently found located a still, mash, etc., or whether they were just eoming from said place; but, as we understand the record, they were going to it. The sister of one of appellant’s' companions testified that she lived in Electra, and that she had with her another sister who was in the last stages of tuberculosis, and that about a day or two before the date of the alleged commission of this offense she asked her toother to get some whisky for their sister’s use as medicine, and that he replied to her that he would go that afternoon and be back with this whisky, but that he did not come back, and that she found out a day or two later that he was arrested on this charge and in. jail. From. Electra, where this witness lived, by way of Vernon, out to Where the party were arrested, appears to be about 65 miles. Officers of Vernon testified that on the afternoon immediately preceding the night of the arrest they observed “some parties around like they were going down there”; that they left Vernon about 4. p. m. and went down on Wichita river and to the neighborhood of the mouth of Coffee creek and searched for stills, but about 8 o’clock they went up and selected a place for observation on a z-oad leading down into the river bottom, and presently observed the lights of a car coming. They stopped the car and found it to contain appellant and his two companions, the whisky in question, and the empty demijohn testified about. It was in testimony that after being arrested appellant and one of his companions led the way down to á point on Coffee creek where were found a tent, and near by a still, barrels of mash, etc. As shedding light on appellant’s attitude in regard to the liquor in question and his connection therewith, a witness testified that a short time before the arrest he was down on Wichita river in the vicinity where the arrest took place and saw appellant near the tent referred to. He said appellant was just standing there looking around when witness observed him. This witness said he was familiar with the odor of mash and that he smelled it at the time he saw appellant.

That thei party were going toward or coming from the point where the still, mash, tent,' etc., were found, and also testimony of the finding of said articles, was admissible for what it was worth as showing appellant’s connection with the liquor in the car, and his guilty knowledge of its possession at the time, and that it was being transported in violation of law. We do not deem the disposition of this matter in our original opinion erroneous.

When testimony is offered by the state that may be considered objectionable by appellant, he may not acquiesce in its introduction by failing' to object thereto and after-wards be heard to complain.

We regret our inability to agree with appellant on the reconsideration of the facts, that there is not sufficient testimony to support the conclusion of guilt.

Appellant’s motion will be overruled. 
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