
    BOORTZ v. STATE.
    (No. 7598.)
    (Court of Criminal Appeals of Texas.
    Oct. 24, 1923.)
    1. Criminal law <@==982 — Refusal to submit issue of suspended sentence held not error.
    Where the application for a suspended sentence recited that accused was more than 25 years of age, there was no error in refusing to submit that issue.
    2. Criminal law &wkey;>l 169(1) — Erroneous admission in evidence of search warrants and af-fid'ayits held not reversible error.
    In a prosecution for manufacturing intoxicating liquor, the reading in the presence of the jury of the search warrants and affidavits supporting them, though improper, held not reversible error, in view of facts establishing defendant’s guilt and the assessment of only the minimum penalty.
    3. Criminal law <fca364(4) — Testimony of acts and requests of defendant while officer was searching premises held papt of res gestae and admissible.
    In a prosecution for manufacturing intoxicating liquor, testimony that, when an officer started for the attic of defendant’s house to search it, defendant reached the attic first and was found attempting to destroy bottles or containers of whisky, and that he offered the officer $500 not to remove them, held admissible as part of the res gestae, notwithstanding Code Cr. Proc. 1911, art. 810, relating to confessions after arrest. '
    4. Intoxicating liquors &wkey;j224 — State not required to prove manufacture was not for permitted purpose.
    In a prosecution for manufacturing intoxicating liquor, the state is not required to prove that it was not made for one of the permitted purposes.
    5. Criminal law <&wkey;829(I) — Denial of requested instruction covered by others given not error.
    Denial of requested instruction covered by others given was not error.
    6. Intoxicating liquors i&wkey;236(l9) — Evidence held sufficient to sustain conviction for manufacture.
    Evidence held sufficient to sustain conviction for manufacture of intoxicating liquor.
    <@=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Washington County.
    John Boortz was convicted of manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    W. J. Embrey, of Brenham, for appellant.
    R. G, Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J„

Conviction is for manufacturing intoxicating liquor. Punishment, one year in the penitentiary.

Appellant sought to have the indictment quashed on many grounds set out in his motion. Without taking the time to .state the various, objections urged we think it sufficient to say all of the questions raised have been settled against his contentions. The general form of the indictment is practically the same as that upheld in Travinio v. State, 92 Tex. Cr. R. 140, 242 S. W. 242. Other contentions have been overruled in Ex parte Gilmore, 88 Tex. Cr. R. 529, 228 S. W. 199; and the Chandler Cases from this state sustained- by the Supreme Court of the United States (see 260 U. S. 708, 43 Sup. Ct. 247, 67 L. Ed. -). Evans v. State, 91 Tex. Cr. R. 646, 241 S. W. 147; Ex parte Mitchum, 91 Tex. Cr. R. 62, 237 S. W. 936; Stringer v. State, 92 Tex. Cr. R. 46, 241 S. W. 159; Mullins v. State, 93 Tex. Cr. R. 474, 247 S. W. 285.

The court committed no error in refusing to submit the issue of suspended sentence. The application therefor recited that appellant was more than twenty-five years of age. Davis v. State, 93 Tex. Cr. R. 192, 246 S. W. 395; Hooper v. State (Tex. Cr. App.) 250 S. W. 694.

Complaint is made that the affidavits for search warrant, and the warrant issued thereunder are void for many alleged irregularities. The opinions in Welchek v. State, 93 Tex. Cr. R. 271, 247 S. W. 524; Harris v. State, 93 Tex. Cr. R. 349, 248 S. W. 54; Bell v. State (Tex. Cr. App.) 250 S. W. 177; Forester v. State (Tex. Cr. App.) 250 S. W. 1027—render these objections unavailing. Tbe search warrant and affidavits should not have been read in the presence of the jury. An issue might arise in some case where they would become admissible, but usually an inspection of them by the trial judge would enable him to pass upon any legal question raised relative thereto. Gurski v. State, 93 Tex. Cr. R. 612, 248 S. W. 353; Bryant v. State (Tex. Cr. App.) 250 S. W. 169. We hold however that under the facts proven and the minimum penalty inflicted this error does not call for a reversal. Gurski v. State, supra.

By bills of exception four, five and six, appellant complains of the introduction of certain equipment found in his house, and the evidence in reference thereto because the parties making the search and testifying about the same were operating under an insufficient search warrant. The authorities cited under the preceding paragraph of our opinion dispose of this contention.

While the officers were searching the house and after portions of the apparatus for manufacturing whisky had been discovered, one of the officers started up in the attic. In some way appellant reached the attic first and was trying-to break some bottles or containers having whisky in them. When the officer caused him to cease his effort he told the officer he would give him five hundred dollars not to take them downstairs. Objection was made to proof of the statement to the officer on the ground that appellant was under arrest and that the evidence objected to was inhibited under the statute (article 810, O. C. P.). If his statement to the officer was inadmissible so like-wise was evidence -of his conduct. We think both were properly provable under the rule of res gestee. Broz v. State, 93 Tex. Cr. R. 137, 245 S. W. 707; Stanton v. State (Tex. Cr. App.) 252 S. W. 519. In Hill v. State, No. 7484, 255 S. W. 433, this day decided, the following language was quoted with approval from Ward v. State, 41 Tex. 613:

' “Where a person does any act material to be understood, his declarations made at the time of the transaction, and expressive of its character, motive, or object, are regarded as verbal acts indicating a present purpose and intention, and are .therefore admitted in proof like other material facts,”

—and then followed such quotation with the statement that:

“Such declarations are a part of the res gestae and are admissible either for or against the accused.”

Many authorities are cited in Hill’s Case (supra) supporting the principle announced. Bronson v. State, 59 Tex. Cr. R. 17, 127 S. W. 175, recognizes the rule that a res gestae statement made by accused is admissible as such notwithstanding it would be inadmissible as a confession, since “res. gestae” is independent of, and cannot be restricted or limited to the rules relating to confessions or admissions made after arrest. See, also, Calloway v. State, 92 Tex. Cr. R. 506, 244 S. W. 549, We do not regard Stanchel v. State, 89 Tex. Cr. R. 358, 231 S. W. 120, and the cases there cited as holding contrary to the views here expressed. No question of res gestae arose in them.

The two special charges requested by appellant to the effect that if the whisky was manufactured for one of the'excepted purposes, a conviction could not be had, were not called for by the evidence. The state was not required to present evidence that the whisky was not made for one of the permitted purposes, but the burden to do so was on appellant if he sought to bring himself under any one of them. Having offered no defensive evidence whatever, the issue did not arise.

We have not discussed bills of exception 7, 9, 10, 11, 13, 14, 15, 16, 17, 18, and 19. All of them save 7 and 9 relate to objections to the charge given and the refusal of special charges. All have been examined. In so far as applicable, the issues presented by the special charges were sufficiently, covered by the main charge, and all were therefore properly refused. Bills 7 and 9 present no error.

The only other question is appellant’s contention that the evidence is not sufficient to authorize his conviction, with which we are not in accord. Upon searching the house the officers found twelve gallons of mash in one room behind - a trunk; in the kitchen three.bottles were found which had contained whisky, with a small quantity of whisky in them, two being one-gallon bottles and one a half-gallon bottle; behind the stove in the kitchen was found a two-gallon copper kettle; in the attic of the house, where it was so dark it was necessary for the officers to use a flash light, were found a coil and a top to the kettle, also two gallon bottles, one full of whisky and the other partly filled. The coil was not connected with the can when found, but on the coil was found dough, and dough was on the top of the can. The dough around the coil would cause it to fit like a stopper in the hole in the can. All articles of equipment were identified by the officers and introduced in evidence. It is further shown that they could be so assembled and operated as to manufacture whis-ky. The kettle had' been washed and bore no odor of liquor, but the coil still smelled of whisky. It was further in evidence that the whisky contained 34.41 per cent, alcohol by volume. In condensing the testimony we do not repeat what has heretofore been said in tha discussion of one of appellant’s bills of exception to the conduct and statement of appellant to the officer at the time the whis-ky and part of the equipment were found in the attic. The evidence in the record leaves no doubt in our minds that the jury jvas authorized in reaching the verdict returned.

Finding no error in the record which would justify a reversal, the judgment is affirmed.  