
    BELSON v. STATE.
    (No. 8192.)
    (Court oi Criminal Appeals of Texas.
    March 26, 1924.)
    1. Intoxicating liquors @=>238(1) — Guilt oi manufacturing question of fact, to be deduced from circumstances.
    In a prosecution for manufacturing intoxicating liquor, defendant’s guilt was a question of fact, to be deduced from the circumstances.
    2. Criminal law @=>364(4) — Declarations of defendant when officer discovered still on his premises held part of res gestse.
    Where, at the time an officer discovered a still in an outhouse on defendant’s premises with some intoxicating liquor, and remarked, “Here it is boys,” defendant spontaneously remarked “It’s hard luck, you’ve got me,” such declaration was admissible as part of the res gestse.
    3. Criminal law @=>784(1) — Charge on circumstantial evidence required, where no direct evidence of guilt.
    Where in a prosecution for manufacturing intoxicating liquor there was no direct evidence of the crime, and guilt- depended on circumstantial evidence alone, it was error not to give a charge on circumstantial evidence.
    <§ss>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Falls County; Prentice Oltorf, Judge.
    B. H. Belson was convicted of manufacturing intoxicating liquors. He appeals.
    Reversed.
    Frank Oltorf and Nat Blewellyn, both of Marlin, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

Manufacturing intoxicating liquor is the offense; punishment fixed at confinement in the penitentiary for a period of three years.

Several officers, possessed of a search warrant, searched the premises of the appellant. He was present and made no objection to the search. On the premises there was found a fluid which the appellant said was “homemade wine, that he had made in case of sickness.” The officer said that it was “choc beer,” and there were a number of bottles of it. Whether it was intoxicating or not is not revealed. Nothing further of a criminating nature was found in the dwelling. A search was then made of an outhouse, and, upon the request of the officers, appellant produced the key thereto. In this outhouse there was found a still. When the door was open and the still discovered, the officer said, “Here it is, boys,” and the appellant hung his head and said, “It’s hard luck, you’ve got me.” The still was connected and warm, though it was empty. On the premises was a liquid which the officers , pronounced as whisky, though the quantity was not stated.

The circumstances show that the appellant was in custody. Objection to the receipt in /evidence of his declaration was made and overruled. Whether the appellant had manufactured the intoxicating liquor was a question of fact to be deduced from the circumstances. The facts in evidence so connected the appellant with the transaction that if a jury under proper instruction had found him guilty of manufacturing whisky; adequate evidence would not have been wanting to support the verdict. The equipment for manufacturing such liquor was upon his premises and under his control; so was the outhouse in which the still was located and the key to which was in his possession. There was evidence that he endeavored to dissuade the officers from searching the outhouse, declaring that it contained tools and nothing else. The boiler of the still, though empty, was warm. There was mash present suitable for the ■ manufacture of whisky; there was a stove with fuel at hand; there was the manufactured product. When these things were discovered, the officer exclaimed, “Here it is, boys.” The appellant spontaneously remarked: “It’s hard luck, you’ve got me.”’ In the opinion of this court, this declaration was admissible under the res gestee rule. If the appellant had said that the still was not his and that the whisky had been made by another, the court would not have been warranted in refusing to receive it, because such a statement would have been so closely connected with the transaction as to characterize it as res gestse.

In Copeland’s Case, 94 Tex. Cr. R. 113, 249 S. W. 495, a still was found in operation, with two brothers present. One of them said that the still was his; that his brother had no interest in it. They were tried separately. The brother offered this declaration, and the trial court rejected it. This court held it admissible, citing several leading cases supporting the conclusion. See Bell v. State, 94 Tex. Cr. R. 266, 250 S. W. 177.

In many decisions and text-books an abstract statement of the rule of res gestse is made. The difficulties arise in applying it, and the precedents in this court reflect its liberal rather than the strict interpretation. See Wharton’s Crim. Ev. vol. 1, § 262, p. 491, also page 502. To become a part of the res gestse, precise concurrence with the act upon trial is not demanded. It is enough if they spring from it and the circumstances preclude the idea of design. Wharton’s Crim. Ev. vol. 2, § 691; Neyland v. State, 13 Tex. App. 536. A narration of past events, however, is not within the rule. Wharton’s Crim, Ev. vol. 1, § 264. It is often difficult, to differentiate between a statement to be rejected as a confession without warning and a statement admissible as res gestse. This matter is discussed at some length in Powers v. State, 23 Tex. App. 66, 5 S. W. 153, and in Calloway v. State, 92 Tex. Cr. R. 516, 244 S. W. 549. In the present case, that difficulty does not seem to arise. The declarations proved appear to have been coincident with the discovery of the evidence of crime and to spring out of it within the meaning of the rule. There are many cases involving violations of the law prohibiting the manufacture and traffic of intoxicating liquor in which the rule has been applied. It is believed that the conclusion here stated is in accord with them. See Berry v. State, 83 Tex. Cr. R. 210, 203 S. W. 901; White v. State, 83 Tex. Cr. R. 555, 204 S. W. 231; Broz v. State, 93 Tex. Cr. R. 137, 245 S. W. 707; Bell v. State, 92 Tex. Cr R. 343, 243 S. W. 1095.

We have perceived no direct evidence that the appellant manufactured, the whisky. As stated before in this opinion, there are circumstances which would support such an inference. The declaration of the appellant was not so unequivocal as to bring the case within the purview of one resting alone upon direct evidence. Branch’s Crim. Law, §§ 202, 203, and cases cited; Gentry v. State, 41 Tex. Cr. R. 497, 56 S. W. 68; Bloch v. State, (on motion for rehearing), 81 Tex. Cr. R. 8, 193 S. W. 303.

Both by an exception to the main charge and to the requested charge, the court’s attention was directed to the fact that the case was one in which the jury should be instructed upon the law of circumstantial evidence. In refusing to conform his charge to this view, it is believed that the learned trial judge committed error which requires a reversal of the judgment, and it is so ordered.  