
    HAYNES v. STATE.
    (No. 8831.)
    (Court of Criminal Appeals of Texas.
    Jan. 21, 1925.)
    1. Criminal law <&wkey;8ll(2) — Refusal to charge burden of proving manufacture was not discharged by proof of possession of equipment held not error.
    Refusal to charge that burden of proving manufacture of whisky was not discharged by proof of possession of equipment for manufacture' held not error, in view of reliance also on possession of fruit jars bearing evidence of use as whisky containers, defendant’s declarations to officer searching premises, locality in which still was found, and discovery of mash on hand.
    2. Criminal law <&wkey;8l I (2) — Charge singling out one circumstance as insufficient to support conviction properly refused.
    Charge singling out one circumstance relied on, and stating that it alone would be insufficient to support conviction, held properly refused.
    3. Intoxicating liquors &wkey;>236(l9>) — That equipment belonged to another not conclusive of innocence of manufacturing.
    That equipment in defendant’s possession for manufacture of whisky belonged to another would not be conclusive of defendant’s innocence of manufacturing.
    Appeal from District Court, Jefferson County; Geo. C. O’Btien, Judge.
    Jesse Haynes was convicted of manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    Blain & Jones, of Beaumont, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is the unlawful manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of two years.

At the time of the arrest of the appellant in July, 1923, there were found upon his premises two stills, a quantity of mash, and utensils so assembled as to be capable of making whisky. At the time of the discovery of the matters mentioned, the officer said to the appellant and some others who were present: “What are you all doing here, having a little liquor party?” Upon reeeiv-ing a negative reply the officer said: “Where have you got it hid, Jesse?” Appellant replied: “You are one day late,” and said that if they had come there yesterday they would have caught him making it.' A search resulted in finding only one or two tablespoons full of whisky.

Appellant testified in his own behalf, and said that the equipment found on his premises did not belong to him, that they belonged to Martin Boykin, who had stayed with him, but who had been gone about three weeks. Appellant said that 'he did not know of any equipment upon his premises until his. arrest, that it was an utter surprise to him. Appellant, however, made ¡no declaration at the time that the property belonged to Boykin.

The court’s refusal to charge that it was incumbent upon the state to prove that the appellant manufactured whisky on the date stated in the indictment, and that the burden was not discharged by the mere proof of the possession of equipment for the manufacture of such liquor, is not deemed erroneous. It is not upon the possession of the still alone that reliance was had. There were a number of fruit jars in appellant’s possession bearing evidence of having been used as containers for whisky. There was a small quantity of that article in one of them. Appellant’s declarations that the officers came one day too late, that if they had come one day earlier they would have caught him making whisky, are not to be overlooked. Neither is the locality in which the still was found. The mash on hand was also of a criminative nature.

The court gave a comprehensive charge upon the law of circumstantial evidence; it being the state’s theory that the cumulative effect of a series of circumstances was such as warranted .the conclusion of guilt. Tested by the law of circumstantial evidence, the propriety of the court in refusing to single out one of the circumstances relied upon and express his opinion that it, standing alone, would not be sufficient to support the conviction seems patent. See Marshall v. State, 5 Tex. App. 273; Crass v. State, 30 Tex. App. 480, 17 S. W. 1096; Hocker v. State, 34 Tex. Cr. R. 359, 30 S. W. 783, 53 Am. St. Rep. 716; Vernon’s Texas Grim. Stat. vol. 2, p. 599; also, Parish v. State, 85 Tex. Cr. R. 81, 209 S. W. 678.

Appellant complains of the refusal of the court to give a special charge to the effect that if the equipment belonged to Martin Boykin an acquittal must follow. This contention is not deemed sound. The appellant could have manufactured whisky with a still belonging to Boykin. That the equipment in appellant’s possession belonged to Boykin would not be conclusive of the innocence of the appellant. It would not have been proper for the court to instruct the jury that if the ownership of the still was in Boykin an acquittal must follow.

The count in the indictment upon which the appellant was convicted charged him with manufacturing intoxicating liquor. That was the issue submitted to the jury by the charge of the court, and the verdict is responsive to it. The judgment and sentence should have followed the verdict, but fails to do so, in that it found him guilty of the unlawful possession of intoxicating liquor. These will be corrected and reformed to agree with the verdict, and so reformed as to properly designate the name of the offense of which he was convicted, namely, manufacturing intoxicating liquor.

The judgment should be affirmed, and it is so ordered. 
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