
    MARCH, 1925.
    Jim Key v. The State.
    No. 8745.
    Delivered.March 25, 1925.
    Rehearing denied April 22, 1925.
    1. —Manufacturing Intoxicating Liquor — Consultation of Court — Proper,
    Where the trial judge during the trial holds a private consultation with the district attorney, not within the hearing of the jury, we are unable to discover how any possible injury was done appellant.
    2. —Same—Statements of Accused. — Res Gestae.
    Where appellant upon being arrested by the officers admitted that he was teaching his little son how to make whisky, such statement being res gestae, was properly admitted.
    3. —Same—Special Charges — Properly Refused.
    Where appellant requested a special charge to the effect that the jury must find irom the evidence beyond a reasonable doubt that the defendant was engaged in doing some manual act or labor in the actual making of the intoxicating liquor, before they could convict, such charge was properly refused, where the defensive issue presented had been fully covered by the courts main charge.
    ON REHEARING.
    ■ 4. — Same—Evidence—Credibility of Witnesses.
    The jury are the exclusive judges of the facts proven, of the credibility of' the witnesses, and of the weight to be given to their testimony, and it has never been held that a jury is compelled to believe the testimony of the accused, as to defensive matters, unless they, in their judgment believe such testimony entitled to credit.
    Appeal from the District Court of Titus County. Tried below before the Hon. R. T. Wilkinson Judge.
    Appeal from a conviction of manufacturing intoxicating liquor; penalty, one year in the penitentiary.
    The opinion states the case.
    
      E. G. Brown and I. N. Williams, of Mt. Pleasant, for appellant.
    
      
      Tom Garrard, State’s Attorney, and Grover C. Morris, Assistant State’s Attorney, for the State.
   LATTIMORE, Judge.

Appellant was convicted in the district court of Titus County of manufacturing intoxicating liquor, and his punishment fixed at one year in the penitentiary.

Officers went to a place near appellant’s house and found him and his little boy at a still which was in operation. The still with mash in it was over a fire and through the worm liquor was dropping into a receptable. Appellant was sitting on one side of the still and his boy on the other. After watching them awhile the officers went up to the place and arrested appellant. One of the officers said to appellant that the worst thing he saw in it all was that he was learning his little boy how to run this still, to which appellant said “Yes”. There is some confusion in the record as to just what the -language used by appellant and the officer was, but witness finally settled on the a.„ove as to what was said.

Appellant did not testify. His son, the boy above referred to, testified that he and his father were out hunting horses and found the still and sat down by it to wait awhile.

The matter was submitted to the jury by a charge to which no exception was- reversed. In the charge they were told that if they believed that appellant and his son simply came upon the still in operation and had nothing to do with the manufacture of the liquor, or if they had a reasonable doubt thereof, they should find him not guilty. There are two bills of execution, one of which complains of some private consultation between the honorable trial judge and the district attorney in the presence of the jury, which appellant seems to think was calculated to injure his cause in some way, but it does not seem to us to present any objectionable matter. A part of this bill also presents an objection to the statement made by appellant to the officer who found him apparently in possession of the still in operation. In our opinion the statement made to the officer was part of the res gestas of the transaction and was admissible. The other bill of exceptions presents complaint of the refusal of a special charge the substance of which was that the jury must find beyond a reasonable doubt that the defendant was engaged in doing some manual act or acts or labor in the actual making of the intoxicating liquor. We do not perceive the special virtue of such a charge. The court had told the jury in the main charge that unless they believed beyond a reasonable doubt that appellant did unlawfully manufacture the intoxicating liquor they should acquit him, and also gave in the charge the part thereof above referred to which seems to exactly cover and fit the defensive theory as made by the testimony of appellant’s son.

Finding no error in the record, the judgment will be affirmed.

Affirmed.

ON MOTION FOR REHEARING.

LATTIMORE, Judge.

We find nothing in the law which compels the jury to accept as true the testimony of any witness, simply because no one in terms contradicts it. In this case the son and daughter of appellant testified in his behalf. The same reason and right which might actuate a jury in declining to accept as true the testimony of one charged -with crime, would appear when applied to those closely related to him, who are therefore vitally interested in the outcome of the ease. Urging that the evidence does not support the verdict, appellant says that the proof shows he had not been at home on the afternoon he was found at the still, — long enough to get a fire going, the mash boiling and whisky running from the worm, this being the condition described by the officers when they arrested appellant at said still.

Fixing the hour or exact time of a particular event by recollection or guess when done after such event, is one of those matters pertaining so much to speculation and variance of opinion as to justify its close scrutiny. The officers said they found appellant and his son at the still “about two or three o.’clock”, but gave no reason for so fixing the hour other than that it was in the afternoon and they had eaten before leaving Mount Pleasant to go out to this place. Appellant’s witnesses testified that he had been to Cookville that day. The daughter said he got home about two o’clock. A neighbor living four hundred yards from appellant says he passed by his house going home about one-thirty. Appellant’s son said they got home about one-thirty. The still was in one part of a tract of land on which appellant lived, his residence in another part. The distance between the still and the residence is not shown, but appellant’s daughter testified that her father and brother had been gone from the house about thirty or forty minutes when the boy came back home and said his father had been arrested. At most, it would thus appear to be about fifteen or twenty minutes travel from the house to the still. We would be unable to determine in the absence of more testimony on the point, whether it would be impossible for one who reached home at one-thirty o’clock to have conducted the preliminary movements such as building a fire, etc., and being engaged in the manufacture of liquor at the time the officers reached the scene. The jury were not compelled to accept the testimony of appellant’s family ns to his movements, the time thereof, or any other facts. Appellant’s son said that he and his father were out hunting for horses, which in one place he testified they had found before they found the still, — and in another place that they had not found until after they found the still. This boy said they found the still in operation, fire burning, the mash boiling, whisky running from the worm, and averred that no one was present and that they knew nothing of its existence, notwithstanding the fact that it was in appellant’s woods pasture. No circumstance appears or otherwise suggests the connection of any other' person than appellant with the operation of the still. The jury considered the facts, and we see no evidence of prejudice or passion on their part. They gave appellant the lowest penalty.

The motion is overruled.

Overruled.  