
    ARZATE v. STATE.
    (No. 8627.)
    (Court of Criminal Appeals of Texas.
    Feb. 18, 1925.
    Rehearing Denied April 8, 1925.)
    1.' Criminal law <&wkey;8l4(I7) — Evidence of manufacture of liquor held not to require instruction on circumstantial evidence.
    ■ Evidence as to observation of defendant and another operating still, and finding of bottles of whisky there and a little whisky in jar under end of coil, held direct testimony, and therefore not to require instruction on law of circumstantial evidence.
    2. Criminal law <&wkey;l 159(5) — Issue of fact resolved against appellant by properly instruct-, ed jury not disturbed.
    Claim of appellant from conviction of manufacture of liquor that he was not interested in still, and that it belonged to another, who was present at still when arrested, and who pleaded guilty, will not be considered, where issue was resolved against him by properly instructed jury.
    Appeal from District Court, Mitchell County; W. P. Leslie, Judge.
    Cipriano Arzate was convicted of manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    W. E. Martin, of Stanton, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

. Manufacturing intoxicating liquor is the offense; punishment fixed at confinement in the penitentiary for one year.

The appellant and his companion were observed at a still located upon a creek in Mitchell county. The still was produced and exhibited to the jury, as were also certain bottles taken from the appellant and his companion at the time of their arrest. The still was described by the testimony of witnesses, and was shown to be suitable for making whisky, and that it was being made use of at the time of the arrest of the appellant and his companion. There was fermented mash usable for making whisky found at the same place.

The appeal is based upon the claim that the court should have instructed the jury upon the law of circumstantial evidence. From the testimony of one of the officers who made the arrest we take the following excerpts :

“ * * * At the time I saw this still, it was in operation. We got to within about a hun--dred yards of where this still was, and we saw a fire just flash up, and then we got down and crawled up close to where we could see — I guess we were in 20 feet of it — and we lay there for 20 or 30 minutes. This still was there connected up just like it is here, and the boiler had a fire under it; it had a little furnace fixed for the boiler to set on and a fire built in that. * * * I could smell whisky. I said that I saw a fruit jar setting under the end of that coil. There were two Mexicans there right together, working and talking together. * * * This Mexican punched up the fire. When he first put his stick in it, it flared up, and we could see them right there together, working hand in hand. When we arrested this Mexican, he had a bottle of whisky in his hip pocket— one of those bottles there. We could see the Mexicans working from where we were before we went up to the still.
“At the time we went up to the still the fire was under the boiler, and the boiler was something like half full of hot mash. * * * When I walked down there and arrested these Mexicans, the still was in full operation with a quart fruit jar under the end of the coil to catch the drippings. I found some whisky there at the time in those bottles there. * * * I smelled and tasted of that liquor; it smelled and tasted like whisky; it was whisky. * * * There was a little whisky — a very little — in the fruit jar that was setting under the end of the hose. I will say that how I know this still will make whisky is that it was in operation and was making whisky at the time we found it, and the whisky was there to show for itself.”

We are constrained to regard the testimony as direct, and not circumstantial.

Appellant testified, claiming that be was mot interested in the still, and said that it belonged to Antonio Ojinogo, who was present at the still at the time of the arrest, and who pleaded guilty to the offense charged. The issue of fact was resolved against the appellant by the jury, guided by instructions which are deemed proper.

The judgment is affirmed. 
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