
    RUSSELL v. STATE.
    (No. 8871.)
    (Court of Criminal Appeals of Texas.
    April 15, 1925.
    Appeal Reinstated May 27, 1925. State’s Rehearing Denied June 24, 1925.)
    On Motion to Dismiss.
    1. Bail <®=>66 — Failure of recognizance to- show offense, for which conviction was had,aheld to require dismissal.
    Recognizance, merely reciting that accused was convicted of felony and appealed therefrom, and which did not specify offense for which conviction was had, and from which appeal was taken, held insufficient, under Vernon’s Ann. Code Cr. Proc. art. 90S, and would require dismissal of appeal.
    On the Merits'after Reinstatement.
    2. Criminal law <§=3364(5) — Statements of accused, made shortly after he was found with wagonload of mash, improperly excluded.
    In prosecution for possession of mash for purpose of manufacturing intoxicating liquor, where wagonload of mash was found in a mud hole, with accused beside it too drunk to drive, his statements several minutes later, after teams had been driven to nearby house, with accused following along behind, held improperly excluded, being part of res gestse, and admissible where offered in behalf of accused, as well as if they had been against him.
    3. Crimina! law <§=3424(3) — Evidence that, after arrest of accused, companion was arrested in possession of new still, inadmissible.
    Where accused was found beside a wagon-load of mash too drunk to drive, and another person appeared to assist in pulling wagon out of mud hole in which it was stuck, and conviction of accused would depend entirely on circumstantial evidence, testimony that later in day, after arrest of accused, the person assisting with wagon was found in possession of a new still, held inadmissible, as seeming to come within rule inhibiting acts and declarations of third parties out of presence and hearing of accused.
    Appeal from District Court, Kaufman County; Joel R. Bond, Judge.
    Whit Russell was convicted of possessing mash for purpose of manufacturing intoxi-eating liquor, and be appeals.
    Reversed and remanded.
    Wynne & Wynne, of Kaufman, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty.,' both of Austin, for tbe State.
   On Motion to Dismiss.

LATTIMORE, J.

Appellant was convicted in tbe district court of Kaufman county of possessing masb for tbe purpose of manufacturing intoxicating liquor, and bis punishment fixed at one year in tbe penitentiary.

Tbe state moves to dismiss tbe appeal because of a defective recognizance. An examination of said recognizance shows that it recites that appellant was adjudged guilty of a felony and appealed from a conviction of a felony. There is no statement otherwise as to tbe offense for which conviction was bad or from which an appeal was taken. This is insufficient. Article 903, Vernon’s C. C. P.

Tbe motion of tbe state will be sustained, and tbe appeal will be dismissed.

On tbe Merits after Reinstatement.

Appellant was convicted in 'the district court of Kaufman county of possessing mash for tbe purpose of manufacturing intoxicating liquor, and bis punishment fixed at one year in tbe penitentiary. Tbe appeal was dismissed at a former time because of a defective recognizance, but this defect has been corrected.

The facts show that appellant was in tbe town of Terrell on .Saturday afternoon, and was asked by Mr. Carter, who. lived in tbe same direction from said town as did appellant, to bring a wagon and team out to Carter’s bouse, which be agreed to do. Mr. .Carter testified that tbe next morning when be got up be saw bis wagon sitting in a mud hole some 100 or 150 yards from his bouse and in it was appellant leaning against tbe dashboard, apparently drunk. ’ A horse, and one of Mr. Carter’s mules were bitched to tbe wagon. Presently one B. C. Calloway, accompanied by a boy, approached tbe wagon, having with them tbe other of Mr. Carr ter’s mules and another horse. They proceeded to book this additional team to tbe wagon and to then attempt to pull it out of tbe bog bole. As far as we can find out from tbe record, Calloway bad tbe lines, and was directing tbe movement of tbe team in its effort to get tbe wagon out of tbe mud. Appellant seems to have gotten out of tbe wagon and fallen or laid down in a prickly pear bush beside the road. Tbe record is not very clear, but further shows that Carter’s team was either taken or went of its own accord, a little later up to tbe bouse of Mr. Carter; appellant following them along the road, not being in a condition to drive. When appellant reached the Carter house, he made some statements to Mr. Carter’s son, which statements, when offered in evidence on his behalf, were rejected, and such action on the part of the trial court is complained of in a bill of exceptions. In our opinion, the court erred in not letting such statements go before the jury.

The state was relying for its proof of possession of mash for the purpose of manufacturing intoxicating liquor upon the fact that Carter had lent or turned over his wagon and team to appellant Saturday night, and that in said wagon the next morning when it was found in the road were six barrels of mash, and that the presence of appellant in the wagon at the time indicated his control, care, and management' of said mash. No one saw appellant load the mash into the wagon, or driving it aiong the road, nor are there any statements made by him in evidence showing that he- had anything to do with said mash. The statement made by him to young Carter in effect negatives the proposition that he had anything to do with it. The length of time from the discovery of the wagon containing the barrels of mash in which appellant was to the time of making the statement to young Carter was apparently but a few minutes. Had he made a criminating statement concerning his possession of said mash under the same ' circumstances, beyond question this would have been admitted as part of the res gestae of such possession. We have always held statements made by one found in possession of a still in operation, or in possession of liquor, if made coincident with such possession and operation, to be res gestae when offered by the state. We see no reason for making a different rule when such statements are offered by the appellant, and, in fact, have held them admissible when» offered, by the defense.

As we view the case, it was one dependent upon circumstantial evidence. As stated above, appellant was not driving the wagon when seen, but appeared to be drunk and incapable of driving it. Other parties appeared upon the scene and-assumed control, or made an effort to remove the wagon. It would appear to be as consonant with reason and the testimony to infer that said parties, or one of them, had driven the wagon containing appellant in his drunken condition, and also containing the mash, to the place where it was found by Mr. Carter, as to conclude that it was driven there by appellant, and that, after reaching said point, he became so intoxicated as to render him unable to proceed further. Either conclusion would be an inference from the circumstances. Unless we are able to conclude that appellant exercised some character of care, control, and management of the mash, the state’s case would entirely fail. No testimony is offered showing him in connection with it at any other place or time;

No testimony was offered by appellant tending to rebut the presumption arising from the possession 'of the mash, if, in fact, he did possess it, for the purpose of manufacturing intoxicating liquor. In this state of case we have serious doubt as to the admissibility of the testimony showing that, late on the same day appellant whs found in the wagon, B. 0. Calloway was arrested on another road, and at a different place, in possession of a new still. Appellant’s knowledge of or connection with 'said still is not shown by the testimony of any witness. We infer from the record that appellant was at that time under arrest, -and the testimony seems to come within the rule inhibiting acts and declarations of third parties out of the presence and hearing of the accused. '

There was no exception to the court’s charge because of its failure to submit the law of circumstantial evidence, and that fact is here' adverted to, so that, in the event of another trial, the judge may submit the law of that issue.

For the reasons above mentioned, the judgment will be reversed, and the cause remanded. 
      <gr=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     