
    LITTLE v. STATE.
    (No. 8855.)
    (Court of Criminal Appeals of Texas.
    May 13, 1925.)
    1. Intoxicating liquors <&wkey;227 — Testimony of deputy sheriff that defendant was intoxicated held admissible.
    In liquor prosecution, testimony of deputy sheriff that defendant was intoxicated when he reported to sheriff’s office, in obedience to sheriff’s directions, /was admissible.
    2. Criminal law <&wkey;5l9(3) — Statements made by defendant after reporting to sheriff’s office held inadmissible as being made while in “custody.”
    Where defendant went to sheriff’s office in obedience to such officer’s direction after he had discovered intoxicating liquors and manufacturing. appliances, defendant was in “custody” within Code Cr. Proc. 1911, art. 810, and his statements to deputy sheriff at such office were inadmissible.
    [Ed. Note. — Eor other definitions, see Words and ’ Phrases, First and Second Series, Custody.] •
    3. Criminal law <&wkey;5!9(3) — Unnecessary for arrest to be in formal words, or for arresting officer to be bodily present, as affecting admissibility of accused’s declarations.
    It is unnecessary that arrest be made in formal words, or for arresting officer to be bodily present at all times to keep accused in “legal custody,” as affecting admissibility, of his declarations; it being sufficient if arrest clearly appears from surrounding facts.
    4. Criminal law &wkey;>823(9) — Charge as to burden of showing manufacture of liquor for excepted purpose proper.
    Charge that, where state showed that a party manufactured whisky, burden was then on him to show that he manufactured it for one of excepted purposes, was proper, when defense was that liquor was for medicinal purpose, and defendant’s right to acquittal in case of reasonable doubt was preserved by another instruction.
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    Sam Little was convicted for manufacturing intoxicating liquor, and he appeals.
    Reversed and remanded.
    
      Adams & Moore, of Nacogdoches, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for the manufacture of intoxicating liquor. Punishment, two years in the penitentiary.

Officers went to defendant’s home, and there found a still for manufacturing liquor and some barrels which had contained mash. They found buried in the lot two gallons of whisky. Defendant, himself, produced the coil and other parts of the equipment and turned them over to the officers. He told them he had made the whisky to drink and that he drank lots of it. He did not claim to them that he was making It for medicinal purposes. The officers testified that he was somewhat under the influence of whisky at the time. They did not take him into custody nor bring" him to town with them, but the sheriff says :

“I made the statement to this defendant, after I found the jugs and all of this stuff was turned over to me, that I would look for him to go to town and make bond.”

Defendant left his home before the officers did, the sheriff seeing him leave with the understanding that defendant would make bond in the afternoon. He got to town and reported to the deputy at the sheriff’s office about 45 minutes before the arrival of the officers who sent him in. The deputy testified, over objection, that when defendant came into the office he said the sheriff had told him to come to town, and said he had made the whisky a night or two before; that he had made it a few times for his own use; and that he drank it and used it. The deputy testified that defendant was drunk at the time; that he (the deputy) had not detained defendant nor said anything about detaining him, but understood from defendant that some officer had told him to come there. The objection to this testimony was upon the ground that defendant was under arrest and that the statements so made by him could not be given in evidence because prohibited by article 810, C. C. P.

Tv.e testimony of the office deputy that defendant was intoxicated was properly received, but we think the court fell into error in admitting statements made by defendant-after he reported to the sheriff’s office. Article 810, supra, prohibits the use of a confession of defendant if made when he is in jail or other place of- confinement, or “while he is in the custody of an officer,” unless the other requirements of said article be complied with. The learned trial judge - admitted the evidence upon the theory that defendant was not under “arrest.” We think in this assumption he gave too restricted a meaning to what is meant by being -“under arrest” or “in custody.” In Clark’s Case, 84 Tex. Cr. R. 890, 207 S. W. 98, the rule announced in Patrick v. State (Tex. Cr. App.) 74 S. W. 550, was restated with approval as follows:

“If by the acts and conduct' of an officer having the party in charge he is led to believe he is under arrest, or is in his own mind conscious of being under arrest, then the confessions, not coming within any of the exceptions named or implied in the statute, are not admissible.”

It is not necessary that the arrest be made in formal words; it may clearly appear from the surrounding facts. Many cases supporting this principal are collated in Clark’s Case, supra. Neither is it necessary for the arresting officer to be bodily present at all times to keep accused in “legal custody,” as affecting the admissibility of declarations. Stoker v. State, 93 Tex. Cr. R. 24, 245 S. W. 444, and Phillips v. State, 86 Tex. Cr. R. 624, 219 S. W. 454, are directly in point upon the particular question before us. Defendant did not appear at the sheriff’s office of his own volition, but in obedience to such officer’s direction. It is evident that defendant did not consider himself as “arrested,” unless under the personal escort of an officer; but it is equally patent that he was doing as commanded by the officers without question or hesitation, and when he reported to the deputy at the sheriff’s office' he was as much in “custody,” in contemplation of the law, under the present facts, as tho.tigh he had been taken there by the sheriff himself.

Some criticism is directed at paragraph 8 of the charge, advising the jury that, where the state shows that a party manufactured whisky, the burden was then upon the party to show that he manufactured' it for one of the excepted purposes. That issue was in the case, the defense being that defendant made the whisky for medicinal purposes. We have often said a charge of the character complained of ought to be carefully worded so the jury would understand that if upon the whole case they entertained a reasonable doubt whether defendant was manufacturing the liquor for an excepted purpose, he would be entitled to ah acquittal, Considering paragraphs 8 and 10 of the charge together, we think the jury could not have been misled in this particular. ■ ■

For the error discussed, the judgment must be reversed, and the cause remanded. 
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