
    HENSON v. STATE.
    (No. 9141.)
    (Court of Criminal Appeals of Texas.
    Oct. 28, 1925.)
    1. Criminal law &wkey;>823(9) — Charge that burden was on defendant to show manufacture of liquor for medicinal purposes not error, where subsequent charge authorized acquittal, if jury had reasonable doubt.
    In prosecution for manufacture of liquor, charge that burden of proof was on defendant to show that manufacture was for medicinal purposes, as claimed, standing alone, is objectionable as failing to instruct jury to acquit if they believed defendant was manufacturing for medicinal purposes, or had reasonable doubt thereof, but, where' court so charged at defendant’s request, there was no error.
    2. Criminal law <&wkey;364(4), 1169(3) — Testimony that defendant was intoxicated when arrested properly admitted, in view of his admissions'and since part of res gestae.
    In prosecution for manufacture of liquor, admitting testimony that defendant was drinking and intoxicated when arrested was not error; defendant admitting drinking liquor and such testimony being part of res gestae.
    3. Criminal law &wkey;>l09l(ll) — Bill of exceptions in question and answer form not considered.
    A bill of exceptions in question and answer form, in violation of Code Or. Proc. 1911, art. 846, will not be considered.
    4. Criminal law <&wkey;364(4), 1169(3) — Statement of defendant at time of arrest, reflecting on guilt held admissible as part of res gestae or harmless error, in view of admissions.
    In prosecution for manufacture of liquor, statement of defendant at time of arrest reflecting on his guilt held, admissible as part of res gestae, and if not so admissible is harmless error in view of defendant’s admission on stand that he was making liquor.
    
      5. Criminal law <@=>407(1) 1169(12) — Proof of' defendant’s silence inadmissible, and its admission required reversal.
    In prosecution for manufacture of liquor, where defense was manufacture for medicinal purposes, testimony that defendant, when arrested, said nothing of purpose of manufacture was error, and its admission required reversal.
    Commissioners’ Decision.
    Appeal from District Court, Cass County; Hugh Carney, Judge.
    W. H. Henson was convicted for manufacturing liquor, and he appeals.
    Reversed and remanded.
    King,. Mahaffey & Wheeler, of Texarkana, for appellant.
    Wright Patman, Dist. Atty., of Texarkana, and Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

The appellant was indicted, tried, and convicted in the district court of Cass county for manufacturing liquor, and his punishment assessed at one year’s confinement in the-penitentiary. The appellant in this case admitted upon the stand that he manufactured the whisky in question, but contended that it was for medicinal pur-, poses.

Complaint is made by the appellant to the action of the court in giving to the jury at the request of the state a special charge to the effect that the burden of proof was upon the defendant to show that he was manufacturing the whisky in question for medicinal purposes. This charge alone might be subject to said complaint for failing to instruct the jury that if they believed appellant was manufacturing the liquor for medicinal purposes, or if they had a reasonable doubt thereof to acquit, etc. In the court’s general charge, and a special charge given at the request of appellant, the court did so instruct the jury, and we think thereby overcame the criticism made. Clevenger v. State, 96 Tex. Cr. R. 23, 255 S. W. 622; Jones v. State, 96 Tex. Cr. R. 332, 257 S. W. 895; Garcia v. State (Tex. Cr. App.) 273 S. W. 856.

Appellant complains of the action of the court in permitting the state to prove by the witness Allbright that he, appellant, was drinking and slightly intoxicated at the time the officers came upon them at the still in question. We see no error in the admission of this testimony. The appellant admitted on the stand that he made the whisky, and that he had drunk a great deal of whisky, and had been under the influence of it, all without objection, and, besides, the testimony was res gestae of the transaction.

By bill of exceptions No. 4 complaint is lodged against the action of the court in permitting the district attorney to ask the defendant on cross-examination relative to Dr, Jackson’s liking to take a drink. This bill was in question and answer form, and in violation of article 846, O. O. P., and we are not authorized to consider same.

Bill of exceptions No. 5 is also in question and answer form, and what has been said with reference to bill No. 4 applies to this bill.- This court has repeatedly held under said article, supra, and many decisions that it cannot and will not consider bills of exception in question and answer form.

By bill of exceptions No. 7 appellant complains of the action of the court in permitting the state's witness Curtwright to testify that the defendant, as soon as he was arrested at the place where they were making the whisky,-stated:

“Boys, you have caught me with my pants down, and that he had played hell or something of that kind.”

Such statements have been held by this court many times to be admissible as a part of the res gestee under the same or similar circumstances. Rayburn v. State, 95 Tex. Cr. R. 555, 255 S. W. 436; Coburn v. State, 96 Tex. Cr. R. 25, 255 S. W. 613, and authorities therein, cited. If same are not res ges-tee statements, it will be harmless error in this instance, because the appellant admitted on the stand that he was making the whisky in question.

In bill of exception No. 6, the appellant complains of the action of the court in permitting the state to prove by its witness Curtwright that he, defendant, when arrested, did not say anything about for what purpose the whisky was being made. This presents the only serious question in. this case for our consideration revealed by the record.

In the case of Ripley v. State, 58 Tex. Cr. R. 489, 126 S. W. 586, Judge Davidson held that it was reversible error for the state to prove that the defendant remained silent after his arrest, citing Simmons v. State, 50 Tex. Cr. R. 527, 97 S. W. 1052, and reaffirming this doctrine in the case of Thompson v. State, 88 Tex. Cr. R. 29, 224 S. W. 892. This court has repeatedly held that it was reversible error to make proof of the defendant’s silence. In the cases of Skirlock v. State (Tex. Cr. App.) 272 S. W. 782, and Johnson v. State (Tex. Cr. App.) 272 S. W. 783.

We believe the action of the trial court in permitting the state to introduce evidence as to the defendant’s silence was error, which requires the reversal of this case.

For the error above mentioned, the judgment of the trial court is reversed and remanded.

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. 
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