
    NICHOLS v. STATE.
    (No. 7594.)
    (Court of Criminal Appeals of Texas.
    April 9, 1924.)
    1. Criminal law &wkey;365(l), 369(2, 15), 371(1) —Evidence of extraneous offenses inadmissible unless establishing indivisible crimes, is part of res gestse, shows intent, identifies accused, or tends to- connect him with crime or defeat defense.
    As a general rule, proof of one offense by accused is inadmissible in a prosecution for another, though exceptions exist, where proof of such extraneous offense establishes an indivisible criminal transaction, is part of the res gestae, shows intent, identifies accused, tends to connect him with the offense or to defeat the defensive theory.
    2. Criminal law <1=5369(6) — Proof of sale by accused in prosecution for manufacture held admissible.
    In prosecution for manufacturing liquors, proof that defendant, subsequent to date of alleged manufacture, was seen with his son, a conceded participant in such manufacture, in possession of whisky and engaged in conveying and selling it, held admissible.
    3. Criminal law <&wkey;l 168(2) — Premature proof of extraneous offenses held not reversible error.'
    The premature introduction of evidence of extraneous offenses by accused held not error justifying a reversal, where subsequent conduct of the case on the part of accused rendered the testimony relevant.
    4. Criminal law <&wkey;673(5) — Where proof of extraneous offense is made, use of same should be limited by instruction.
    Where proof of an extraneous offense has been admitted, the jury should be charged that it could not be used to convict defendant of the offense for which he was being prosecuted.
    5. Criminal law <&wkey;783(l) — Instruction limiting use of proof of extraneous offenses held improperly worded.
    In a prosecution for manufacturing intoxicating liquor where proof of sales and trans-portations by defendant was admitted, an instruction limiting the use which the jury might make of such testimony held to improperly refer to that evidence- as “tending to prove” the offense of transporting.
    6. Criminal law <&wkey;l056(l) — In absence of exception to instruction it is not reviewable.
    In the absence of an exception to an instruction as required by Vernon’s Ann. Code Cr. Proe. 1916, art. 735, it cannot be reviewed.
    <§=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    
      7. Criminal law <&wkey;419, 420(1) — Proof of declarations by wife of state’s principal witness held properly excluded.
    In a prosecution for manufacturing liquor, the exclusion of evidence of declarations made by the wife of the state’s principal witness held not error, where same were not made in his presence and where the wife did not testify.
    8. Intoxicating liquors <&wkey;>233(2) — Proof of barrels and mash on defendant’s place held proper in prosecution for manufacture.
    Proof that barrels and whisky mash had been turned into a creek or ravine on defendant’s place held properly admitted in prosecution for manufacture.
    9. Criminal law &wkey;^l 170(1) — Exclusion of evidence of defendant’s intent to destroy barrels held, if error, nonprejudicial.
    In a prosecution for manufacturing liquor where a witness introduced by defendant testified that he had found the barrels in defendant’s pasture and informed defendant of same, exclusion of proof that defendant had said he would go at once and destroy the barrels held, if error, nonprejudicial; the declarations being as well calculated to injure as to aid defendant.
    10. Criminal law <&wkey;4l9, 420(1) — Proof of statements by defendant’s son not a witness held properly excluded.
    In a prosecution for manufacture of whisky, proof that a particular witness had previously met defendant’s son, who told him that he could obtain some whisky by going to the home of the state’s principal witness, held properly excluded as hearsay; defendant’s son not being a witness.
    11. Criminal law , <&wkey;655 (5) — Reprimand of counsel for repetition of question after adverse ruling held not error.
    A reprimand of defendant’s counsel for persistent repetition of a question, the propriety of which the court had ruled against, held not error.
    12. Jury &wkey;>13l(l3) — Requirement that defendant’s counsel examine jury panel as whole held- not error.
    The court’s requirement that defendant’s counsel examine the jury panel in a body, rather than individually, with explanation that if it seemed desirable to examine a particular juror it be permitted, held not error, particularly in absence of any showing that an objectionable juror sat or exhaustion of defendant’s peremptory challenges; matter being largely within discretion of court.
    13. Criminal law <&wkey;507,l/2 — Defendant may properly show state’s principal witness accomplice necessitating corroboration.
    It is permissible for defendant to prove that the state’s principal witness was so connected with the offense charged as to classify him as an accomplice and require corroboration of his testimony under Code Or. Proc. 1911, art. 801.
    14. Crimina! law <&wkey;78Q(l) — Failure to submit issue of witness’ being accomplice and to instruct on accomplice testimony held error.
    In a prosecution for manufacturing intoxicating liquor where a witness for defendant testified that he saw the state’s principal witness and defendant’s son, a conceded participant in the offense charged, operating still in question at about the time that defendant was charged with its operation, failure of the court to require a finding as to whether such witness was an accomplice and to instruct as to necessity for corroboration of accomplice testimony held reversible error.
    (g^sPor otter cases see same topic ana KEt-NUBBJSR in all Key-Numbered Digests and Indexes
    Appeal from District Court, Wood County; J. R. Warren, Judge.
    Ed Nichols was convicted of manufacturing intoxicating liquor, and he appeals.
    Reversed and remanded.
    Shields & Anthony, of Grand Saline, and Jones & Jones, of Mineóla, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the •State.
   MORROW, P. J.

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

The state’s witness McEIroy testified that he observed the appellant and his son, Denny Nichols, making whisky; that a few days later he saw the appellant* and his son take some whisky across the river in a boat and saw the appellant return with a quantity of money and say that he had ipade a “good haul.” Appellant asserts that in the receipt of evidence of the latter transaction, the rule against proving collateral offenses was transgressed. There is a general rule of evidence which forbids the use against one on trial for a specific offense of evidence of other crimes committed by him. Underhill on Crim. Ev. (3d Ed.) § 150. This rule, as shown by the citations under the text mentioned, obtains in all jurisdictions where the rules of common law prevail. The exceptions to this rule, however, are numerous.

“If several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony, whether direct or circumstantial, of any one of them cannot be given without showing, the others, evidence of any or all of them is admissible against a defendant on trial for any offense which is itself a detail of the whole criminal scheme.” Underhill on Grim. Ev. (3d Ed.) § 152.

A general statement with reference to the exceptions to the rul’e is made by Mr. Branch in his Ann. Tex. P. C. § 2347, thus:

“Proof of other offenses is admissible if such proof is a part of the res geste of the alleged offense for which defendant is being tried, or if it tends to show intent when intent is an issue, or serves to prove identity when identity is an issue, or when it-is sought to show the guilt of defendant by circumstantial evidence and such proof of another offense connects or tends to connect the defendant with the alleged offense for which he is being tried, or when it tends to defeat the defensive theory.”

The law denounces as unlawful the manufacture, sale, and transportation of intoxicating liquor, also its possession when fop the purpose of sale. Acts 37th Leg. 1st Called Sess. (1921) c. 61, § B (§ 1) [Vernon’s Ann. Pen. Code Supp. 1922, art. 588Vi']. The related nature of these offenses and the many instances in which the single act might sustain a prosecution under one or several of them has imposed upon the bench and bar a somewhat new and quite difficult task in adjusting the application of the rule and exceptions under consideration to violations of the provisions of the statute mentioned.

Touching some of the offenses denounced, proof of one necessarily establishes the other, and the conviction of one bars a prosecution for the other. See Whitten v. State, 94 Tex. Cr. R. 144, 250 S. W. 165. The proof which shows the manufacture of intoxicating liquor frequently necessarily reveals its possession; proof of the sale often includes the transportation and possession; and so, proof of transporting often includes proof of other transactions under the article denounced by statute. The intimate relation of these crimes' and the nature of the evidence which develops them, as stated above, increased the difficulty of keeping the* evidence of other offenses within the terms of provisions of the law excluding collateral crimes and the exceptions thereto, and necessarily the application of these rules in a given case are controlled by the other facts which are put in evidence in the prosecution or defense of the case.

In the present case, the state’s witness testified that at a certain place he saw a still in which the whisky was manufactured by the appellant and his son. The son was not present at tl;e time of the trial. Appellant specifically denied the transaction and combat-ted the truth of the testimony of the state’s witness by putting in evidence much testimony concerning the presence of the accused and the description of the equipment and the locality of the still, inconsistent with the testimony given upon the trial. The general reputation of the state’s witness for. truth, and veracity was also vigorously assailed.

In addition to these methods of attack upon the state’s case, evidence was.introduced by the appellant that the prosecuting witness was under indictment for felonies and that the state’s witness and Denny Nichols possessed and operated the still in question. In the light of these various matters must be determined the propriety of the receipt in evidence of the testimony to the effect that the appellant and his son, Denny Nichols, had-carried whisky across the river in a boat and sold it. In other words, under the evidence detailed, did the testimony last mentioned become admissible under any of the exceptions to the rule excluding extraneous crimes? Instances of cases where the offense charged is manufacturing intoxicating liquor, evidence tending to show a violation of other provisions of the law prohibiting the various phases of the liquor traffic have been received, are numerous: Taylor v. State, 17 Ala. App. 579, 88 South. 205; Richardson v. State, 23 Ariz. 98, 201 Pac. 845; Lowery v. State, 135 Ark. 159, 203 S. W. 838; Thielepape v. State, 89 Tex. Cr. R. 493, 231 S. W 769; State v. Douglas, 122 Wash. 387, 210 Pac. 778. The presence of intoxicating liquor near the place: Dozier v. State, 17 Ala. App. 609, 88 South. 54; Battles v. State, 18 Ala. App. 475, 93 South. 64. Circumstances showing the connection with the still upon land other than his own: Mitchell v. State, 18 Ala. App. 119, 89 South. 98. See, also, Patterson v. State, 140 Ark. 236, 215 S. W 629; Marsh v. State, 146 Ark. 77, 225 S. W. 7; Higgins v. State, 136 Ark. 284, 206 S. W. 440; Wilson v. Commonwealth, 181 Ky. 370, 205 S. W. 391; Jackson v. State, 82 Tex. Cr. R. 383, 200 S. W. 150; Mayfield v. State, 160 Ark. 474, 254 S. W. 841; Ferguson v. State (Tex. Cr. App.) 255 S. W. 749; Moore v. State, 94 Tex. Cr. R. 546, 252 S. W. 168; Lamm v. State, 94 Tex. Cr. R. 560, 252 S. W. 535; Mince v. State, 94 Tex. Cr. R. 572, 252 S. W. 564; Kelly v. State (Tex. Cr. App.) 252 S. W. 1065; Newton v. State, 94 Tex. Cr. R. 382, 251 S. W. 240; Hubbard v. State, 94 Tex. Cr. R. 480, 251 S. W. 1054; Newton v. State, 94 Tex. Cr. R. 288, 250 S. W. 1036; Bryant v. State, 94 Tex. Cr. R. 67, 250 S. W. 169; Freeman v. State, 93 Tex. Cr. R. 436, 249 S. W. 466; Pulliam v. Commonwealth, 197 Ky. 410, 247 S. W. 366; Reub v. State, 93 Tex. Cr. R. 345, 247 S. W. 867; Davis v. State, 93 Tex. Cr. R. 192, 246 S. W. 395; Copeland v. State, 244 S. W. 395; Anderson v. State, 91 Tex. Cr. R. 183, 238 S. W. 221.

That the still had been operated at the place indicated by the state’s witness is not seriously combatted. The identity of the operators became a question through the appellant’s defensive theory that the operators were the state’s witness and the son of the appellant. This was opposed to the state’s position that the operators were the appellant and his son. The state’s testimony to the effect that there was a quantity of whisky (the fruit of the crime of manufacturing) at hand was not controverted; nor was the fact that the appellant’s son was one of the offenders. Considering the appellant’s testimony denying that he manufactured the whisky and the various attacks made by him upon the credibility of the witness relied upon by the state and the other defensive evidence mentioned, was it not relevant and competent that the state show that near the time and place at which the offense was committed, the appellant, in connection with his son, one of the conceded actors in the commission of the offense, was in possession of articles sueli as the still produced and engaged in selling it and conveying' it to the purchaser? We think this question should be answered in the affirmative, and that such answer is consistent with the rule quoted from Mr. Branch announcing the prevailing exceptions in this state and in harmony with many of the cases to which reference has been made in this opinion. This court has no desire, in fact, it is concerned to avoid any extension of the exceptions to the law opposing the receipt in evidence of collateral offense, but is constrained to the view that under the rule and the exceptions as they have heretofore been established, the evidence in question was not improperly received. It may be conceded that in introducing it, the state was premature; but the subsequent conduct of the case upon the part of the accused having rendered the testimony relevant, the immature receipt of part of it was not error justifying a reversal of the judgment. Gregory v. State, 92 Tex. Cr. R. 581, 244 S. W. 615.

The jury should have been made to know by appropriate instruction that the evidence of the transportation and sale of intoxicating liquor could not be used against the appeljant to convict him of offenses with which he was not charged. Wyatt v. State, 55, Tex. Cr. R. 74, 114 S. W. 812; McCall v. State, 14 Tex. App. 362 ; and other cases listed by Mr. Branch in his Ann. Tex. P. C., § 188, subds. 4 and 5. The paragraph of the court’s charge intended to comply with this legal principle is criticized in the brief of the appellant, but does not seem to have been made the subject of exception before the 'charge was read to the jury, as required by statute, article 735, Vernon's Ann. Code Cr. Proc. 1916.

The criticism made against the charge, namely, that in it the jury is told that there ds certain evidence “tending to prove” the offense of transporting intoxicating liquor, has often been disapproved. Santee v. State (Tex. Cr. App.) 37 S. W. 436, and other cases listed by Mr. Branch in his Ann. Tex. P. C., § 190, subd. 4. See, also, Gustamente v. State, 81 Tex. Cr. R. 640, 197 S. W. 998.

There are other parts of the paragraph of the charge which are criticized in the brief, but in the absence of an exception made before the charge was read to the jury, when the error might be corrected by the trial court, the matter cannot be reviewed on appeal.

There was no error in refusing to admit in evidence the declarations of Mrs. McElroy, wife of the state’s witness. She did not testify, nor were the declarations shown to have been made in his presence. Neither were they shown in any competent way to have been authorized by him. The principle applied in Logan’s Case, 17 Tex. App. 56, permitting the introduction of hearsay information upon which one charged with homicide acted, does not support the present contention.

Evidence that 'there was found upon the premises of the appellant certain barrels and whisky mash which had been turned into the creek or ravine was, we think, properly received as a circumstances supporting the state's theory and combatting that of the appellant. The remoteness of the locality in which the articles were found bears upon the weight rather than upon the relevancy of the testimony. , ,;

The witness • McKnight, introduced by the appellant, testified that he had never seen upon the appellant’s premises any mash or evidence of the manufacture of intoxicating liquor; that there were some barrels found by the fitness in appellant’s pasture. Of all this, the witness informed the appellant. The witness would have testified that the appellant said he would go at once and destroy the barrels. The error in excluding this declaration is not perceived. Manifestly, if error, however, it was unimportant. The declaration apparently was quite, as well calculated to injure as to aid the appellant.

The witness Vick testified for the appellant that some time in the spring of 1922, while at the Sabine river fishing, he saw Denny Nichols, son of the appellant, and had a conversation with him. Vick would have testified that Nichols told him that he could obtain some whisky by going to the home of the witness McElroy. Denny Nichols was not a witness, and none of his declarations were put in evidence by the state. We are not aware of any rule of evidence which would exempt his declaration from exclusion under the hearsay rule. The case of Du Bose v. State, 10 Tex. App. 230, and others to the same effect holding that one may exculpate himself by competent evidence that another committed the crime of which he was charged, would not, in our opinion, sustain the appellant’s contention that the evidence proffered should have been received. See Bowen v. State, 3 Tex. App. 617; Holt v. State, 9 Tex. App. 570; Wharton’s Crim. Ev. vol. 2, p. 476; Walsh v. State, 85 Tex. Cr. R. 215, 211 S. W. 241, 131 Am. St. Rep. 778, note; Taylor v. State, 81 Tex. Cr. R. 351, 197 S. W. 196 ; James v. State, 86 Tex. Cr. R. 107, 215 S. W. 459 ; James v. State, 86 Tex. Cr. R. 599, 219 S. W. 202.

The complaint that counsel was reprimanded after he had persistently repeated a question, the propriety of which the court hacj, ruled against, as the matter is revealed by the bill of exceptions, shows no error.

The attacks upon the validity of the statute under which the prosecution is based are such as have heretofore been passed on in various cases and have been held untenable. Ex parte Gilmore, 88 Tex. Cr. R. 529, 228 S. W. 199.

In this case, appellant’? counsel desired to question each individual juror separately on his voir dire examination. The court required that he examine the panel in a body and explained to him that, if upon such examination it seemed desirable to examine any particular juror, it would be permitted. The bill fails, to show that any cb-jectionable juror sat upon the jury or that any of appellant’s peremptory challenges were exercised. It also fails to show any injury resulting from the procedure which the court required him to follow. If the case had been one in which an individual examination of jurors became necessary, doubtless the trial court would have accorded it. Nothing is presented in the present matter to so classify it. The matter is one in which the discretion of the trial court would generally prevail. Crow v. State, 89 Tex. Cr. R. 150, 230 S. W. 148.

A witness for the appellant testified that he had' seen the state’s witness McElroy and the appellant’s son, Denny Nichols, operating ( the still in question. This occurred about the same time that appellant is charged with operating the still. According to the witness mentioned, McElroy and Denny Nichols, who lived close together, were seen making whis-ky at the still in question.

An exception was reserved to the court’s charge because of the failure to instruct the jury upon the law of accomplice testimony as applied to the witness McElroy. The state having used the witness McElroy to inculpate thé appellant, it was permissible for the appellant, by competent evidence, to prove that McElroy was so connected with the criminal transaction in question as to classify him as an accomplice witness requiring corroboration under the terms of article 801, C. C. P. Such is the rule stated by this court in Ex parte Gilstrap, 14 Tex. App. 265, and other cases collated by Mr. Branch in his Ann. Tex. P. G. § 707. The evidence to which we have adverted, taken in connection with the testimony of the witness McElroy, was such as to render it incumbent upon the court to call upon the jury to determine whether McElroy was an accomplice. witness within the meaning of the law and whether there was corroborative evidence meeting the measure of the statute supporting his testimony. Article 801, G. G. P. In failing to embrace in his charge such an instruction, or to amend the charge when attention was, by exception, called to the omission, the learned trial judge, in our opinion, fell into error which requires a reversal of the judgment. It was in the main upon the testimony of the witness McElroy that the state relied.. The question whether he was an accomplice witness was a matter of importance.

Because of the refusal to instruct the jury on that subject, the judgment is reserved, and the cause remanded.  