
    McLEMORE v. STATE.
    (No. 8945.)
    (Court of Criminal Appeals of Texas.
    April 22, 1925.)
    Intoxicating liquors <&wkey;236(19) — Evidence held to sustain conviction of manufacturing liquor.
    Evidence held to sustain conviction of manufacturing liquor.
    Appeal from District Court, Rusk County; Chas. L. Braehfield, Judge.
    John Henry McLemore was convicted of the unlawful manufacture of intoxicating liquor, and he appeals.
    Affirmed.
    Victor A. Smith and Gray & Gray, all of Henderson, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., ■ both of Austin, for the State.
   MORROW, P. J.

The offense is the unlawful manufacture of intoxicating liquor'; punishment fixed at confinement in the penitentiary for a period of two years.

Under a search warrant the home of the appellant was searched by Hayes, the- sheriff, and Hargis, a constable. From the testimony of the constable we quote:

“ * * * I know the defendant here, John Henry McLemore. On or about the 9th of June, last year, I saw the defendant at his home. I made a search around there. We found a still down' about 200 yards south of Jiis house — right back of it — and some whisky and mash. There was a 50-gallon barrel of the mash. * * * I will state that the trail went from the house to the well, and didn’t go anywhere else; the trail was fresh traveled, too. It was traveled after the dew fell on it, and you could see the tracks. Besides the mash, we found some whisky. The still was first dug in a little drain that came down that way, and this well was dug in the drain, and right down below the well there was the mash, and the furnace had been opened and the still was just a little further over, pitched over under some brush, and the whisky was picked' up part in one place and part in another, and the fire had not gone out good where the furnace was. * * * When we got there there was a light in the house, *' * * and we went and made the search, and he got.up and' his shoes were the-re and wet with dew. There was dirt all over them, like you wade out in the dew and dirt. * * * This well was about 8 or 4 feet from the top to the water; it was just a hole in the ground. 'There was a 10-quart bucket with a piece of rope on it, and the ground was wet all around, and showed water ' spilled in the last two or three hours. * * * That well was about 200 yards south of his house. * * * We searched John Henry’s house. We didn’t find anything there but some sugar.' * * * There was some flour there, too. There was some lard there, and about 100 pounds of sugar. • We did not find any whisky in the house.”

The testimony of the sheriff was in substance like the above.

The witness Yarborough testified that he worked for the appellant until about 5 o’clock in the afternoon of the 8th of June. -

The appellant’s father, Steven McLemore, testified that he had let the appellant have a quantity of sugar for his hands or workmen. William Bryant testified that he had worked for the appellant and had received fle-ur and sugar in payment for his work.

Appellant testified, and denied making the whisky, as well, as the ownership of the still. He said that he had worked on the previous day for Chester Yarborough; that upon the following morning he found the officers there; that during the night he had gotten up to-give some attention to the children and struck a light; that he had some time before gotten water at the well near which the still was located, but that the well had caved in at the time of the alleged offense, and that he was not using water from it; that-he had not Vsed any water in the well fox-some six months. He explained his possession of the sugar and flour by stating that be used it to pay bis workmen.

Appellant insists that tbe evidence is insufficient, and cites Kulberth v. State, 95 Tex. Cr. R. 462, 254 S. W. 985; Tolar v. State, 97 Tex. Cr. R. 145, 260 S. W. 1043; Woodward v. State, 97 Tex. Cr. R. 85, 260 S. W. 184; Hubnik v. State, 97 Tex. Cr. R. 363, 261 S. W. 778.

In tbe present case tbe circumstances were sucb as to leave beyond question tbe manufacture of intoxicating liquor on tbe premises of tbe appellant near bis dwelling. There were other circumstances which are deemed sufficient to connect him with tbe commission of tbe offense. There were no others residing upon tbe premises; there were no other dwellings in tbe same proximity. Tbe arrangements for making whisky were sucb as to support tbe inference that they bad been recent. There was a path leading from tbe appellant’s dwelling to the place where tbe still and whisky were found. At tbe time of the arrival of tbe officers late in the night there was a light in tbe house.' Tbe wet grass upon tbe path mentioned bore evidence of recent use. There seems to have been a quantity of sugar upon tbe premises, which is one of ingredients -used in 'the manufacture of whisky. The presence of tbe sugar was explained by tbe appellant and bis father; tbe light in tbe bouse was explained by tbe testimony of tbe appellant. Tbe interest of both tbe appellant and bis father was sucb that tbe jury were not bound to accept their testimony as true. See Satterwhite v. State, 6 Tex. App. 609; Hawkins v. State, No. 8599, 270 S. W. 1025, not yet [officially] reported. Even if true, however, it leaves unexplained, save by tbe denial of tbe appellant, all tbe other evidence to which we have adverted, and which is deemed sufficient to support tbe conclusion of the jury that tbe equipment was in possession of tbe appellant 'or bad been used by him. Tbe precedents cited are not deemed in conflict with this bolding. Kulbertb’s Case, supra, was one in which tbe state relied alone upon tbe confession of tbe accused to prove tbe corpus delicti. Tolar’s Case, supra, was decided upon tbe weakness of the state’s case, in that there was an absence of proof that intoxicating liquor had. been manufactured. Woodward’s Case, supra, is distinguishable in that tbe res gestse explanation' of the incriminating circumstances was introduced by the state and tbe truth thereof was not disproved. When tbe state introduces exculpatory evidence justifying . an acquittal, tbe record must disprove tbe exculpatory facts. Otherwise an acquittal should follow. Woodward explained bis possession of a small quantity of whisky and named witnesses by whom bis statement could be verified. These witnesses, available to the state, were not produced.- In I-Iubnik’s Case, supra, there was a failure upon tbe part of tbe state to prove that tbe still bad been used or that whisky bad been manufactured. Tbe appliances found in bis possession were not sufficient to make whisky. It was held that Hubnik’s possession of a pint of whisky was not so inconsistent with bis innocence, when taken in connection with tbe other evidence, as to warrant a conviction. Tbe state’s evidence went no further than to suggest that be bad prepared to make whisky. No other question is presented for review.

The judgment is affirmed.  