
    SKINNER v. STATE.
    (No. 10473.)
    (Court of Criminal Appeals of Texas.
    Jan. 5, 1927.)
    1. Intoxicating liquors <@=>137 — That equipment be sufficient for manufacturing liquor held not required by statute making possession of equipment penal.
    Statute making penal possession of equipment for manufacturing intoxicating liquor held not to require that equipment found be, in and of itself, sufficient for manufacturing purposes.
    2. Intoxicating liquors <@=3-236(19) — Evidence held to establish that possession of equipment was to be used for manufacturing liquor, though distilling outfit was not complete.
    In prosecution for possessing equipment for manufacturing intoxicating liquor, finding of copper still and copper thump keg, together with barrel of mash and whisky in defendant’s possession, held sufficient to establish defendant’s purpose in having such equipment for manufacture of liquor, though distilling outfit was not shown to be complete.
    3. Indictment and information <@=-159(1)— Permitting formal amendment to indictment by state held not error where defendant was permitted to try, case ab Initio (Code Cr. Proc. 1925, art. 533).
    In prosecution for possessing equipment for manufacture of intoxicating liquor, allowance of formal amendment to indictment by state held not error, in view of Code Cr. Proc. 1925, art. 533; defendant having been permitted to withdraw announcement of ready, to select entirely new jury, and to try ease ab initio after such amendment.
    4. Indictment and information <@=>159(1)— Formal amendment of indictment held not to entitle defendant to additional period before trial.
    In prosecution for possessing equipment to manufacture intoxicating liquor, formal amendment of indictment held not to entitle defendant to additional two days before being placed on trial.
    5. Criminal law <@=>404(4) — Admission of barrel of mash and jars containing whisky, held not error, in prosecution for possessing equipment as permitting proof of separate offense.
    In prosecution for possession of equipment for manufacturing intoxicating liquor, admission of barrel of mash and certain containers having in them whisky found in defendant’s possession held not error, as permitting proof of separate offense; such evidence indicating purpose for which defendant possessed equipment.
    6. Intoxicating liquors <@=> 137 — Refusal of instruction making defendant’s guilt dependent on whether equipment found was sufficient to manufacture iiquor held not error.
    In prosecution for possessing equipment to manufacture liquor, refusal of instruction that, unless still found in defendant’s possession was sufficient to manufacture liquor, he should not be convicted, held not error.
    
      Appeal from District Court, TJpslmr County ; J. R. Warren, Judge.
    Chester Skinner was convicted of possessing equipment for manufacturing intoxicating liquor, and lie appeals.
    Affirmed.
    Carroll Florence, of Gilmer, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   LATTIMORE, J.

Conviction in district court of Upshur county of possessing equipment ; punishment, one year in the penitentiary.

The facts in this case are very short, consisting of the testimony of only one witness. Sheriff Bryce testified that he was at appellant’s house on or about March 1, 1926, and found on his premises a copper still and a copper thump keg; same being in a storm-house. He further stated that said still was equipment for the manufacture of intoxicating liquor. He also stated that he found a barrel of mash and a number of fruit jars and glass jugs which contained whisky. He said this, property was in appellant’s possession. On cross-examination he testified that he did not find any worm to go with the still.

Upon this testimony appellant insists that the court should have instructed a verdict of not guilty and for this refusal the case should be reversed; appellant’s proposition being that it is necessary, in order to support a conviction for the offense charged against appellant, that he be shown to have been in possession of equipment sufficient to manufacture intoxicating liquor. We are not in accord with appellant’s contention. There is nothing in the statute making penal the possession of equipment for manufacturing intoxicating liquor which requires that the equipment found. be in and of itself sufficient for that purpose. It Is manifest that, if appellant’s contention he sound, then, unless the state- discovered the equipment when actually engaged in the manufacture of liquor, prosecutions could easily be defeated by the removal of any part of the equipment and secreting same where it could not be found.

The plain interpretation of the language of our statute makes guilty any person who possesses equipment for the purpose of manufacturing intoxicating liquor, and we observe in the testimony of the officer the statement that the still and thump keg found by him was equipment for the manufacture of intoxicating liquor, and we conclude that the other articles found by him support the fact that appellant’s purpose in having the equipment actually found w’as to use same in the manufacture of such liquor.

Appellant has a bill of exception to the action of the court in permitting the state to amend its indictment. The amendment was merely in a formal part of said instrument, and after same was made appellant was permitted to withdraw his announcement of ready, select an entirely new jury, and try the ease ab initio. This complaint we think without merit under the provisions of article 533, 1925 C. C. P. We are not in agreement with appellant’s contention that upon this amendment being made he was entitled to an additional two days before he could be put to trial; The change made in the indictment was not one of substance but merely of form.

Appellant’s third bill of exceptions presents his complaint of the reception of testimony of the finding of a barrel of mash and certain containers, having in them whisky, in appellant’s possession at the time ,and place of the finding of the still, etc. Appellant’s position seems to be that this is evidence of a separate and distinct offense.. We are of opinion that the offenses are so related as to make proof of one material upon the trial of the other. One of the elements of the offense charged against appellant is the purpose for which he possesses the equipment, and this finds support in ¡his possession of the raw material; also the finished product. Thielepape v. State, 89 Tex. Cr. R. 493, 231 S. W. 770.

We are not impressed with appellant’s contention that the court should have defined a still. Appellant’s exception to the charge on this point seems to be based on the proposition that same should have informed the jury that, unless the still, etc., found in his possession was equipment sufficient to manufacture intoxicating liquor, he should not be convicted. As stated above, we are not in accord with this view of the law.

Being unable to agree with any of the contentions made, the judgment will be affirmed. 
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