
    WARD v. STATE.
    (No. 9180.)
    (Court of Criminal Appeals of Texas.
    June 3, 1925.)
    1. Criminal law &wkey;>552(l) — If main fact proved as inference from other facts, then ease rests on circumstantial evidence.
    If main fact is proved as a matter of inference from other facts in evidence, case rests wholly on circumstantial evidence.
    2. Criminal law <&wkey;784( I) — Failure to charge on circumstantial evidence held erroneous.
    Where proof of main fact, whether defendant possessed a still for purpose of manufacturing intoxicating liquor, depended on inference from other facts in evidence, case rested on circumstantial evidence, and failure to charge thereon was error.
    Commissioners’ Decision.
    Appeal from District Court, Nacogdoches County; B. D. Guinn, Judge.
    Richard Ward was convicted of unlawful possession of a still, and he appeals.
    Reversed and remanded.
    Adams & Moore, of Nacogdoches, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

The appellant was jointly indicted with Dan Ward on an indictment containing two counts; the first being for the unlawful manufacture of intoxicating liquor, and the second count being for the unlawful possession of a still for the manufacture of intoxicating liquor The defendant Richard Ward was tried and found guilty on the second count of the indictment, and his punishment assessed at confinement in the penitentiary for a term of one year. '**'

The only eyewitness to the transaction was Edgar Young, who testified that he was 18 years of age and knew the defendant Richard Ward, and also knew Dan Ward, and that about the 17th of August of that year he saw Dan and Richard Ward; that Dan Ward was at his still which was down in Richard Ward’s pasture; that this still was about 250 yards from Richard Ward’s house; and that he saw Richard Ward in his cowpen, which was some 20 yards from the still. Witness testi fled that the still could not be seen from where he was at the time that he saw Richard; that he did not see Richard go to the still, and that Richard was not at the still when he saw him; that the still was in a pine thicket; that he saw Dan Ward cooking whisky in an oil drum that had a pipe connected with it. Witness further testified that he saw Dan Ward the same evening at Sacul, but that he never saw Richard Ward; that he saw Dan with a gallon of whisky in a jug, and saw him sell some of it to Jess Spencer; that at the time the sale was made Dan Ward was not at Richard’s house and was at the house of Isaiah Sessions. This witness fails to testify to any fact that in any manner directly connects Richard Ward with either the possession of the still or the manufacture of the whisky.

The sheriff and one of his deputies and the constable testified for the state; the full substance of their testimony being to the effect that they found a piece of iron pipe about an inch in diameter and about 10 or 11 feet long and' a trough, and that the trough was on the ground near where there was a bed of coals, and the pipe was about 30 feet from that place — that these were about 200 yards from Richard Ward’s house. In an opposite direction some distance from Richard’s house, they found a 30-gallon drum. These officers each testified that Richard claimed at the very time of the finding of this paraphernalia that it belonged to Dan Ward, and that Richard told them that Dan had been making whisky with it a few days before that. They also testified to searching Richard Ward’s house, and admitted their failure to find any whisky of any kind, or anything out of which whisky might have been made, in the house of this appellant.

Under these facts, the appellant properly excepted to the court’s failuré to charge on circumstantial evidence, and cited as error in this court the trial court’s failure to do so. We think appellant’s contention in this respect is well founded. Bookout v. State, 95 Tex. Cr. R. 562, 255 S. W. 441.

The correct rule is that, if the main fact is proved as a matter of inference from other facts in evidence, the case rests wholly, in a legal sense, upon circumstantial evidence. The main fact to be proved in this case was, Did the appellant Richard Ward possess a still for the purpose of manufacturing intoxicating liquor? And this fact, if proved at all, was proved as a matter of inference from other facts in evidence in the case, and the case rests wholly upon circumstantial evidence. Branch’s P. C. p. 1341.

Appellant seriously contends that the evidence is insufficient to support the verdict in this case, but, as the testimony may-be different on another trial of the case, we pre-termit a discussion of this matter.

For the court’s error in refusing to charge on circumstantial evidence, it is our opinion that the judgment should he reversed, and the cause 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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