
    SPURRIER v. STATE.
    (No. 8721.)
    (Court of Criminal Appeals of Texas.
    April 29, 1925.
    Rehearing Denied Oct. 14, 1925.)
    1. Criminal law &wkey;s8l I (3) — Failure to charge that equipment must be capable of being assembled and used to manufacture liquor not error.
    In prosecution for manufacturing intoxicating liquors, failure of court to charge that equipment found in defendant’s possession must be capable of being assembled and used in manufacture of whisky was not error; court not being required to single out matter of this nature.
    2. Intoxicating liquors <&wkey;239(J) — Failure to charge that, if equipment was not capable of manufacturing liquor, or if jury had reasonable doubt thereof, -they should acquit not error.
    In prosecution for manufacturing liquor, failure of court to instruct jury that, if they believed from evidence that equipment found in defendant’s possession was not capable of manufacturing liquor, or if they had reasonable doubt thereof, they should acquit was not error.
    3. Criminal law <&wkey;829(l2) — Failure to charge that defendant could not be convicted unless he actually manufactured liquor not error, in view of other instructions.
    Failure of court to charge jury that, although they might believe defendant was in possession of equipment for manufacture of liquor, still he could not be convicted unless he actually manufactured it, was not error, in view of court’s instruction on circumstantial evidence and charge that, unless they believed beyond a reasonable doubt defendant manufactured liquor, they could not convict.-
    4. Criminal law q&wkey;8l4(ll) — Failure to charge on alibi not erroneous, where no evidence thereof in record.
    Failure to charge on alibi not erroneous, where no evidence thereof was in record.
    5. Criminal law <&wkey;>829(l2) — Failure to charge that, though liquor manufactured on defendant’s premises, conviction could not be had, unless defendant was present, knew of manufacture, and aided or abetted offense, not erroneous, in view of other instructions.
    Failure to .charge that, although jury might believe intoxicating liquor was manufactured on defendant’s premises, yet they could not convict him unless he was present, knew of manufacture, and aided or abetted in some way those engaged in manufacturing, was not error, in view of court’s charge informing jury they could not convict, unless they believed beyond a reasonable doubt that defendant unlawfully manufactured spirituous liquor.
    On Motion for Rehearing.
    6. Intoxicating liquors <&wkey;236(19)— Conviction for unlawfully manufacturing liquor sustained.
    , Evidence held, sufficient to sustain conviction for manufacturing intoxicating liquor, though part of still was not found.
    <@^>For other oases see same topic and KEY-NUMBER. in all Key-Numbered Digests and Indexes
    Commissioners’ Decision.
    Appeal from District Court, Jones County; W. R. Chapman, Judge.
    Buck Spurrier was convicted of manufacturing liquor, and he appeals.
    Affirmed.
    Lon A. Brooks, of Anson, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

Appellant was convicted in the district court of Jones county for the offense of manufacturing liquor, and his punishment assessed at confinement in the penitentiary for a term of two years.

Briefly stated, the facts show that up ih appellant’s pasture, in a branch a little ways from his house, there were found 4 barrels of mash and 14 fruit jars of whisky. This was something like 250 yards from his house. The whisky was buried in the banks of the branch, and showed to have been recently buried. There was also found at^ the same place what the witness Birdwell calls a still. The record also shows that a noticeable trail was found leading from the appellant’s house to where the whislry and the still were found. The mash, barrels were covered up with brush. There were also.found in appellant’s dugout, about 20 steps from his residence, 25 or 30 fruit jars, some of which had had whis-ky in them. The record further shows that, when the deputy sheriff went up to the appellant at the time the search was made, and told him he had a search warrant, the appellant went with the deputy sheriff on down to the residence of the appellant, and there evaded the deputy sheriff, and left the country, and was gone for something like a year.

The court gave a correct charge on circumstantial evidence, and the objections raised to the court’s charge show no error.

Appellant’s bill of exception No. 2 raises the Question of a request for a peremptory instruction, and shows no error.

By bill No. 3 appellant complains because the court did not instruct the jury that the equipment found in defendant’s possession must be capable of being assembled and-used to manufacture whisky before the jury could convict. Under the facts in this case this charge was properly refused, as the court was not required to single out a matter of this sort and specifically charge on it.

What has just been said disposes of bill No. 4, which complains because -the court refused to instruct the jury that, if they believed from the evidence that the equipment found in defendant’s possession was not capable of manufacturing^ liquor, or if they had a reasonable doubt thereof, they should acquit. As above stated, the court correctly charged on circumstantial evidence in the case, and this charge was sufficient.

By bill No. 5 appellant complains of the action of the court in refusing to instruct the jury that, although they might believe defendant was in possession of equipment for manufacturing liquor, still he could not be convicted, unless he actually manufactured it. In addition to charging on circumstantial evidence, the court instructed the jury as follows:

“In no event can you convict the defendant, unless you believe beyond a reasonable doubt that the defendant, Buck Spurrier, did in Jones county, Tex., on or about the 5th day of March, A. D. 1923, unlawfully manufacture spirituous, vinous, or malt liquor or medicated bitters capable of producing intoxication.”

This paragraph of the court’s charge, together with his charge on circumstantial evidence, fully excludes the idea that there is any error in refusing to give the charge suggested in bill No. 5.

The complaint made by appellant’s bill of exception No. 6 shows no error, in view of paragraphs 5 and 6 of the court’s charge.

The defense of alibi was not raised by the evidence in this case, and appellant’s bill of exception No. 7, complaining of the court’s failure to charge thereon, is without merit.

Appellant’s bill No. 8 complains of the court’s failure to inform the jury that, although they might believe that intoxicating liquor was manufactured on defendant’s premises, yet they could not convict him, unless he was present at the time the same was manufactured, or that he knew that intoxicating liquor was being manufactured on his premises, and aided or abetted in some way those engaged in the illegal manufacture of intoxicating liquor. We are not satisfied that a charge of this kind, if given, would not have been subject to the objection that it was on the weight of the evidence. But, in- any event, any right that the appellant may have had in this'matter was fully protected by that paragraph of the court’s charge which" informed the jury that in no event could they convict the defendant, unless they believed beyond a reasonable doubt that he unlawfully manufactured spirituous, vinous, or malt liquors or medicated bitters capable of producing intoxication on or about the 5th day of March, A. D. 1923.

We have carefully considered the facts in this case, and are satisfied that they are entirely sufficient to warrant the jury in finding the defendant guilty.

Finding no error in the record, it is our opinion that the judgment should be affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

UATTIMORE, J.

We have carefully examined the earnest and extended motion filed by'appellant, -but find ourselves unable to agree with the contention made that the evidence is not sufficient to support guilt. Not only was appellant found in possession of practically all of the parts of a still, but he was also found in possession of quite- a quantity of whisky and mash. The whisky had been recently buried. The vicinity showed where fires had recently been made, and there was a noticeable trail leading from appellant’s house to where the whisky and still were found.. There was no other house situated near the scene of the operation. The mere fact that the officers were unable to find the worm would not be enough to justify the jury in rejecting the testimony offered, or in concluding it insufficient to show circumstantially the guilt of the accused. To so hold would be to establish á rule which would be unsound, viz. that, if any part of an operating still should be moved and destroyed or secreted, this would defeat conviction for the manufacture of liquor,, no matter how convincing the remaining proof might he. We cannot lend our sanction to such rule.

The motion for rehearing will be overruled.  