
    CALLOWAY v. STATE.
    (No. 8629.)
    (Court of Criminal Appeals of Texas.
    Feb. 18, 1925.
    Rehearing Denied March 18, 1925.)
    1. Criminal law <@=1091 (4) — Bill of exceptions complaining of admission of testimony that officers had found a number of. stills running in county held insufficient as not showing such testimony not admissible on some issue.
    In prosecution for unlawful possession of still, where defendant’s possession of unas-sembled still in one place and mash in another was established, bill of exceptions complaining of admission of testimony that officers had found a number of stills running in county held insufficient as failing to show that evidence was not admissible on some issue of case.
    2. Criminal law <©=>517(1) — Evidence of confession by defendant to possession of mash held not inadmissible in prosecution for unlawful possession of still as disclosing extraneous offense.
    In prosecution for unlawful possession of still, defendant’s confession, to effect that he was in possession of mash and was hauling it for purpose of making whisky, held not inadmissible as disclosing commission of another offense.
    3. Criminal law <§=>1184 — Sentence not giving defendant benefit of Indeterminate Sentence Law will be reformed on appeal.
    Sentence not giving defendant benefit of Indeterminate Sentence Law will be reformed on appeal.
    Appeal from District -Court, Kaufman County; Joel K. Bond, Judge.
    B. C. Calloway was convicted of unlawfully possessing still for manufacture of intoxicating liquor, and he appeals.
    Affirmed.
    Wynne & Wynne, of Kaufman, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Appellant is under conviction for the unlawful possession of a still for manufacturing intoxicating liquor. His punishment was assessed at two years’ confinement in the penitentiary.

The evidence shows conclusively that ap<-pellant had prepared several barrels of mash from which he intended to make whisky. He had ordered a still for that purpose, which arrived in the city of Terrell on the day preceding the arrest. He undertook to move the mash from Terrell to a point in the country. The wagon in which the barrels were loaded bogged in the mud before reaching his destination. He started to this point wjth the still also, but upon discovering that the mash could not bé carried through had turned back towards Terrell with the still in his-car when he was apprehended by the officers. . ■ ,

Appellant-complains that the state was permitted to prove by the officers that they had found a number of stills running in Kaufman county: The bill' is insufficient, in that it fails to show that' the evidence objected to was not admissible upon some issue in the case. An examination oi the statement of facts’reveals that the mash found by the officers and the still found in possession of appellant were at different places. The still had never been assembled. The officers testified that with the equipment found in appellant’s possession, and with the mash found at another point (but shown to have belonged to appellant), whisky could have been made. It may have been the purpose of the testimony complained of to show the officers were familiar with stills and their operation and therefore, qualified to testify that the equipment in connection with the mash could be successfully utilized in the manufacture of liquor.

There is no merit in the contention that the confession of appellant to the effect that he was in possession of mash and was hauling it for the purpose of making whisky was inadmissible as disclosing the commission of another offense. All of the evidence was pertinent to the particular transaction under investigation.

We observe that in passing sentence upon appellant he was not given the benefit of the Indeterminate Sentence Law, but was condemned to serve two years in the penitentiary. The sentence will be reformed to read that he be confined in said' penitentiary for not less than one nor more than two years.

As thus reformed, the judgment is affirmed. - 
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