
    KEY v. STATE.
    (No. 8745.)
    (Court of Criminal Appeals of Texas.
    March 25, 1925.
    Rehearing Denied April 22, 1925.)
    1. Criminal law <§=>364(4) — Accused's response to statement by officer when arrested for manufacturing liquor held part of res gestae.
    Affirmative response by accused, to a statement made by an officer, who discovered accused and his son near a still, that the worst thing that the officer saw was that accused was “learning” his boy how to run a still, held part of the res gestae, and admissible in a prosecution for manufacturing liquor.
    ■2. Criminal law <§=>829(4) — Refusal of special charge, in a prosecution for manufacturing liquors, held error.
    In a prosecution for manufacturing liquor, it was not error to refuse special charge that jury must find that accused was engaged in doing some manual act or labor in actual making of liquor, where main charge directed acquittal, in absence of belief beyond reasonable doubt that accused did unlawfully manufacture the liquor, and also exactly covered accused’s theory of defense.
    On Motion for Rehearing.
    3. Criminal law <§=>555 — Jury need not accept as true testimony of persons closely related to accused.
    Jury need not accept as true testimony of any witness simply because it is not in terms contradicted, and it may decline to accept as true testimony of persons closely related to accused.
    4. Intoxicating liquors <§=>236(19) — Evidence held to sustain conviction of manufacturing liquor.
    Evidence held to sustain conviction of manufacturing liquor.
    Appeal from District Court, Titus County; R. T. Wilkinson, Judge.
    Jim Key was convicted of manufacturing intoxicating liquors, and be appeals.
    Affirmed.
    H. G. Brown and I. N. Williams, both of Mt. Pleasant, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   DATTIMORE, J.

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 receptacle. 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 above 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 reserved. 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 exception, 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 geste 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 he affirmed.

On Motion for Rehearing.

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 case. Urging that the evidence does not' support' the verdict, appellant says that the proof shows he had not been at home on the after- ‘ noon he was found at the still, long enough to get a fire going, the mash boiling and whis-ky 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 2 or 3 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 Mt. Pleasant to go out to this place. Appellant’s witnesses testified that he had been to Oookville that day. The daughter said he got; home about 2 o’clock. A neighbor living 400 yards from appellant says he passed by his house going home about 1:30. Appellant’s son said they got home about 1:30. 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 in not shown,, but appellant’s daughter testified that her father and brother had been gone from the house about 30 or 40 minutes when the boy came back home and said his father had been arrested. At most, it would thus appear to be about. 15 or 20 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 1:30 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 as 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 worrci, 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. 
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