
    CULVER v. STATE.
    (No. 8744.)
    (Court of Criminal Appeals of Texas.
    May 6, 1925.
    Rehearing Denied Oct. 14, 1925.)
    1. Criminal law <&wkey;l 169(1) — Admission of testimony by arresting officer that he and one accompanying him discussed how they would approach still held harmless.
    In prosecution for manufacturing intoxicating liquor, admitting testimony of arresting officer that he and one accompanying him at time of arrest discussed how they would approach still and stood in certain place two or three minutes before they started walking up on still, without giving details of conversation, was harmless.
    2. Intoxicating liquors @=3228 — Admitting testimony that one of accused’s boys came to still held proper.
    In prosecution for manufacturing liquor, admitting testimony by arresting officer that he saw one of accused’s boys come to still which accused was operating was not error.
    3. Criminal law <&wkey;36.4(4) — Testimony that accused, arrested in operation of still, told his son to go- back, that officers had him, held admissible as res gestee.
    In prosecution for manufacturing intoxicating liquor, where accused was arrested while practically in possession of still from which he had run away shortly before being arrested, his statement to his son, “Go on back; they have got me,” was part of res gestae, and admissible in evidence.
    4. Criminal law t&wkey;l 120(8) — Asking accused on cross-examination if he had not been indicted for selling liquor held not error.
    In prosecution for manufacturing intoxicating liquor, asking accused on cross-examination if he had not been indicted for selling liquor was not error, in absence of showing in bill of exception that former indictment was too remote to make inquiry into it admissible.
    5. Criminal law &wkey;>1163(2) — Conviction not reversed for prejudice of juror, in absence of showing that when accused accepted juror he did not know of prejudice.
    Conviction for manufacturing intoxicating liquor will not be reversed for prejudice of juror, in absence of showing that when accused accepted juror he was not informed of facts set forth in motion for new trial tending to show prejudice.
    <@u33For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    
      6. Criminal law &wkey;>i 163(2), 11661/2(6) — Necessary showing to reverse conviction for prejudice of juror stated; burden on defendant to show absence of knowledge of prejudice.
    To reverse conviction for prejudice of juror, it must be shown, not only that effort was made before accepting him to ascertain whether he had expressed opinion of accused’s guilt or whether he had prejudice against accused, but also that it was through no lack of diligence that accused was deceived by juror’s answer, and burden is on accused to allege and 'prove that he had no knowledge of such prejudice or such statement when he accepted juror.
    On Blotion for Rehearing.'
    7. Intoxicating liquors &wkey;>236(!9) — Evidence held to sustain conviction for manufacture of intoxicating liquor.
    ' In prosecution for manufacture of intoxicating liquor, evidence that accused was present at still being used to manufacture liquor, that he attempted to escape and was arrested, held sufficient to support conviction.
    <&wkey;>Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Commissioners’ Decision.
    Appeal from District Court, Titus County; R. T. Wilkinson, Judge.
    L. E. Culver was convicted, of manufacturing intoxicating liquor, and lie appeals.
    Affirmed.
    Seb F. Caldwell, of Mt. Pleasant, for appellant.
    T. C. Hutchings, Dist. Atty., and Sam Williams, Co. Atty., both of Mt. Pleasant, and 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 Titus county for the offense of manufacturing liquor, .and his punishment assessed at confinement in the penitentiary for a term of 3 years.

The state’s testimony shows that officers discovered a still down south of 'Mount Pleasant, in an old marsh, and that they saw some men walking around and stooping down about the still, and that it was fired up and smoke coming from it; that one of the men discovered the officers, and the parties around the still all ran; that the defendant was running at full speed when, he passed the arresting officer, and that the arresting officer pursued him, and after appellant fell down he was caught; that immediately after he was caught the appellant’s boy came from an opening in the woods, and when the boy came up appellant told him to go on back to the house, and said, “They have got me.” The still when found was a complete outfit and was running whisky, and 3 or 4 barrels full of mash and between 6 and 10 gallons of whisky were found. The testimony shows that the still was in full operation. It was just a minute or two after appellant was caught before the boy came up and the statement above detailed was made.

By appellant’s first bill of exception complaint is made that the witness Gregory was permitted to testify that he looked back around and saw Mr. Thompson coming, and that he and Thompson discussed how they would- approach the still, and stood there two or three minutes before they started walking up on the still. No details of the conversation were given by this witness. Gregory was the officer who made the arrest, and Thompson was the party with him in the raid. We are cited to no. authorities, and know of none, holding that this testimony under these circumstances is not admissible, and in any event this testimony was harmless.

Bill of exception No. 2 complains of the action of the court in permitting the witness Gregory to state that he saw one of appellant’s boys come down there to the still. This testimony was clearly admissible. The state certainly had a right to show and to name all of the parties that were present at the scene of the offense, if any was committed.

What has just been said with reference to bill No. 2 disposes of bills Nos. 3 and 4, which raise the same question in a slightly different form.-

Bill of exception No. 5 complains of the action of the court in permitting the arresting officers, to testify that the appellant told his son, “Go on back; they have got me.” This statement was inade at the very time of-the arrest of appellant, and appellant was arrested while practically in possession of the still; indeed, he was seen to run away from the still and after running less than 50 yards the arrest was made. As above stated, the still was in full operation and whisky was actually being manufactured at the time, and, under the decisions of this court, this testimony was clearly a part of the res gestee.

We have examined bill of exception No. 6, and fail to find any error therein.

The bill of exception prepared by the court shows that the district attorney asked the defendant on cross-examination if he had not been indicted in the court for selling liquor. This court has uniformly held that it is .proper matter of impeachment to show that a witness testifying has been formerly indicted for a felony, where the evidence does not show that the indictment is too remote. There is nothing in this bill of exception showing that the former indictment was too remote to make an inquiry into it admissible..

Appellant complains of the action of the court in not granting him a new trial because the juror W. A. Hayden sat on the jury that tried his case; the appellant’s contention being that the juror was prejudiced against the appellant and had made reference to appellant’s bad reputation, and because tbe juror bad made tbe statement before going on tbe jury, wbicb statement was unknown to appellant, that appellant ought to be convicted and that be would like to serve on bis jury and put bim in tbe penitentiary. Jn bis motion for a new trial appellant alleges that W. A. Hayden, one of tbe jurors selected on' tbe jury that tried bim, prior to tbis trial declared be would like to get on defendant’s jury; that be would convict bim and send bim to tbe penitentiary and make bim work. 20 years; that be bad defrauded the Farmers’ Union, and never did any work. Tbe juror on bis voir*dire denied that he bad any opinion or bias or prejudice against tbe defendant.

It will be observed from'an inspection of tbe motion for a new trial that appellant did' not allege and swear that be was not informed of these facts when he accepted tbe juror Hayden as one of tbe jurors; neither is there any proof offered on tbe motion for a new trial showing that tbe appellant bad no knowledge of these facts at tbe time be took the said juror, and, in tbe absence of a showing to tbe effect that when he accepted tbe juror Hayden be was not informed of tbe facts set forth in the motion, tbis court will not reverse on account of said statements alleged to have been made by tbe said juror Hayden.

Before this court would be authorized to reverse a case oh account of. matters of tbis kind, it must be shown, not only that an effort was made before accepting tbe juror to ascertain whether he bad expressed an opinion of the defendant’s guilt or whether be bad a prejudice against tbe defendant, but also that it was through no lack of diligence that' tbe defendant was deceived by the answer of tbe juror; and it has been uniformly held that tbe burden is on tbe defendant under these conditions to allege and prove that be bad no knowledge of such prejudice or of such statement at tbe time that be accepted tbe juror. McWilliams v. State, 32 Tex. Cr. R. 270, 22 S. W. 970. See paragraph 7, § 565, p. 288, Branch’s Penal Code, for a full collation of authorities on tbis question.

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

PER CURIAM.

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

On Motion for Rehearing.

LATTIMORE, J.

Tbe affirmance is assailed on tbe sole ground of lack of testimony. We cannot say that tbe evidence was so slight as to show prejudice and want of due consideration on tbe part of tbe jury. Whisky was in process of manufacture when a raiding party approached tbe place. Appellant and other men were at and around tbe still. For some 10 minutes tbe raiding party watched and listened. Tbe men were moving around tbe still and talking. They caught sight of tbe raiders and fled in different directions. Appellant ran until caught, refusing to stop when ordered to do so, and when warning shots were fired in tbe air. Appellant’s boy came up in a minute or two. Two shots bad been fired by some one in tbe direction from wbicb the boy came. Appellant’s home was a mile away. When tbe boy came up, appellant told bim to go home, saying: “They have got me.”

While appellant claimed bis innocent presence at tbe still, be admitted on cross-examination that be been convicted for a felony, viz., selling whisky. Without summing úp these matters as we have enumerated them, and as they are set out in our original opinion, we think they support tbe finding of tbe jury, and tbe motion for rehearing will be overruled.  