
    CULVER v. STATE.
    (No. 7448.)
    (Court of Criminal Appeals of Texas.
    Feb. 14, 1923.
    Rehearing Granted March 28, 1923.)
    1. Criminal law <@==419, 428(10) — Testimony held hearsay and properly excluded. .
    In a prosecution for manufacturing intoxicating liquor, testimony by witness that another person had stated that the apparatus belonged to him was hearsay and was properly excluded.
    2. Witnesses <@=>337(5) — Proof of conviction of other crimes admissible to affect credibility of accused.
    Where one accused of crime testifies in his own b.ehalf, he may be questioned in regard to his indictment or conviction of other felonies to affect his credibility.
    
      On Motion for Rehearing.
    3. Intoxicating liquors <&wkey;>236(l9).—Evidence held to warrant conviction of manufacturing intoxicating liquor.
    Evidence that defendant was found at a still when it was raided and that he attempted to' rpn away and refused to stop, even though the officers fired after him, and was captured only when he ran into a bog, held to warrant conviction.
    4. Criminal law <&wkey;925'/2(3)—Conduct of juror in arguing from facts within own knowledge held ground for new trial.
    In a prosecution for manufacturing intoxicating liquor, the conduct of a juror during deliberations of the jury, in replying to an argument that accused might merely have stopped at the still in stating, “I know that country down there, and that man was a mile out of his way to get to that still,” held ground for new trial.
    Appeal from District Court, Titus County; R. T. Wilkinson, Judge.
    L. E. Culver was convicted of manufacturing intoxicating liquor, and lie appeals.
    Reversed and remanded.
    Seb E. Caldwell, of Mt. Pleasant, for appellant.
    R.. G. Storey, Asst. Atty. Gen., 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

By his bill of exceptions No. 1 appellant complains of the rejection of testimony of a witness by whom he sought to prove that another party had stated to witness that the apparatus testified about in this case belonged to him. We know of no authority which would hold such testimony removed from the domain of hearsay, and in our opinion it was inadmissible.

Appellant’s bill of exceptions No. 2 presents objection to proof on the part of the state of the fact that appellant had been convicted and given a suspended sentence upon his prosecution for a felony, and also the fact that appellant was now under bond for his appearance before the federal court to answer for violating the federal liquor law. It is well settled in this state that an appellant who becomes a witness in his own behalf may be asked with reference to his indictment or conviction of other felonies. Such testimony tends to affect his credibility. It is not affirmatively shown in the bill that the charges pending against appellant in the federal court were not felonies. No error appears in said bill of exceptions.

Bill of exceptions No. 3 presents appellant’s further complaint of the rejection of evidence offered in his behalf which in our opinion is clearly hearsay.

There wás no error in refusing a peremptory instruction of acquittal.

The bill of exceptions complaining of misconduct of the jury presents no error. This matter was set. up in appeilant’s motion for new trial and one witness testified upon the hearing before the trial court. The statements attributed to one of the jurors while •the jury was in retirement were in the nature of a reply to argument made by another juror, and while said statements appear to reflect a matter not in testimony, they were of apparently little materiality, and we would not deem the learned trial court in error in declining to grant a new trial because of same.

Finding no error in the record, an affirmance is ordered.

On Motion for Rehearing.

In a strong motion supported by forcible oral argument, appellant insists that we were wrong in our original opinion. We have reviewed the facts in evidence in view of the insistence that same are insufficient to justify the conclusion of guilt, but we find ourselves unable to agree with appellant in this regard. Appellant left his home about 3:30 in the afternoon, according to his own testimony, for the purpose of going to see a negro who was apparently cultivating land somewhere in the vicinity of the place where he was presently found at a still. This was about a mile from appellant’s home. At a time not fixed definitely, but stated to be between 4 and 5 o’clock that afternoon, the two state witnesses found him at a still which was in operation at the time. The state witnesses were looking for the still and located it by various indications; they separated and went around a bog and met again. One of them had waited for a few minutes for the other., They then stood there and discussed how best they could approach and capture the men operating the still. Both of these witnesses testified that no one came to the still while they were there watching; that five men were walking around the still and talking. Presently by agreement the men, one of whom was an officer, called out to the party at the still to “hands up.” They sdid that the men all ran. Appellant ran by one of the state witnesses who had a Winchester rifle. This witness testified that after appellant ran by him he fired the rifle twice in an effort to scare appellant and make him stop. Both witnesses deny that any firing was done until after the men at the still ran. Appellant refused to stop either at the instance of the officers or at the firing of the gun, but, according to the state witnesses, ran into a bog which rendered his capture possible. No witness appeared to support appellant’s contention save himself. We would be unwilling under this state of facts to bold that the jury were actuated by prejudice or transcended their province in concluding guilt.

We are led to believe, however, that our opinion as to the effect of alleged misconduct of the jury was not well considered. It is true that as stated in our original opinion, the jurors were arguing back and forth the question of appellant’s guilt, and one who was favorable to appellant was insisting that a man might have been simply passing by that still and have been there when the officers found him and still not be guilty, and in reply to this argument appears the statement which was relied upon as evidencing misconduct. In reply to the argument of the juror favorable to appellant, it appears from the testimony taken upon the hearing of the motion for new trial that another juror spoke apparently to the assembled jurors and said:

“I know that country down there, for I used to live there, and that man was a mile out of his way to get to that still.”

It is true that the jury does not have to accept the explanation of the conduct given by one charged with crime and on trial therefor; but appellant’s contention, supported by his own testimony, was that he wSw on his way down to see the negro above mentioned, and that he unintentionally approached said still and was just getting there as the officers called out to “hands up,” and that he was in that vicinity for the purpose of seeing said negro and for no other. Upon more mature reflection, it does appear to us that the statement of the juror that he knew the country because he used to live there, and that appellant was a mile out of his way at that still, is susceptible of injurious effect. If said juror knew where the negro lived and worked that appellant claimed to be on his way to see on the occasion in question, and knew that the place toward which appellant insisted he was going was such as that he was a mile off his road or out of his way at the still, this might very seriously affect the jury’s inclination for or against the theory testified to by appellant. In fact, we are led to believe that this amounted to testimony other than that of a witness and which was contradictory to the testimony of appellant while on the witness stand. The bill of exceptions approved by the trial court without qualification shows that the juror who was favorable to appellant was the only one who testified on the hearing of the motion for new trial. The state did not controvert this testimony in any way. None of the other jurors appeared, and we are thus left in a position where we cannot say that the trial court heard the testimony offered upon the hearing of the motion for new trial, and after such hearing overruled same, and because of possible conflicts therein we must conclude it supported his conclusion.

There being no evidence controverting that of the juror as to misconduct of the jury and the giving of testimony during their deliberations, by one of their number, unfavorable to appellant, we are led to believe ourselves in error and that our judgment of affirmance must be set aside and the rehearing granted, and the cause reversed and remanded, and it is so ordered. 
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