
    JOHNSON et al. v. STATE.
    (No. 10252.)
    Court of Criminal Appeals of Texas.
    April 27, 1927.
    1. Constitutional law <&wkey;>250 — Criminal law <&wkey;978 — Statute prohibiting suspended sentence of persons over 2.5 for violating liquor laws held not unconstitutional as discriminatory (Pen. Code 1925, art. 689; Code Cr. Proc. 1925, art. 776).
    Pen. Code 1925, art. 689, denying benefits of suspended sentence law (Code Cr. Proc. 1925, art. 776), to persons over 25 convicted of violating the liquor laws, held not unconstitutional as discriminatory.
    2. Criminal law (@x^394 — Sheriff’s testimony as to finding still and mash without search warrant on uninclosed lands not occupied by defendants held admissible.
    Permitting sheriff to testify to finding still and mash, without search warrant, on unin-closed lands and in woods, not occupied by defendants, held not error.
    3. Intoxicating liquors <&wkey;239(4) — Instruction to convict of manufacturing intoxicating liquors, .though manufactured for medicinal purposes, or if jury had reasonable doubt thereof, and refusal of instruction to acquit in such case, held erroneous.
    Instruction to convict of manufacturing intoxicating liquor, though it was manufactured for medicinal purposes or jury had reasonable doubt thereof, and refusal of instruction to acquit if whisky was being manufactured for such purposes or jury had reasonable doubt thereof, held erroneous.
    Commissioners’ Decision.
    Appeal from District Court, Upshur County ; J. R. Warren, Judge.
    Dock Johnson and H. L. Evers were convicted of unlawfully manufacturing intoxicating liquor, and they appeal.
    Reversed and remanded.
    M. B. Briggs and Maberry & Maberry, all of Gilmer, for appellants.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

The appellants were jointly tried and convicted of unlawfully manufacturing intoxicating liquor, and their punishment assessed at one year each in the penitentiary.

The record discloses that the sheriff and his deputy discovered the appellants making whisky out in the woods three or four miles from their residences, and found in close proximity, thereto several barrels of mash. The appellants defended upon the ground that the whisky was being manufactured by appellant Johnson for medicinal purposes, to be used by his wife, and that the appellant Evers, brother-in-law of Johnson, was not interested in the still or connected therewith in any manner, and was taking no part in the manufacture of the whisky, but that he had gone to the scene of the alleged offense at the request of Johnson without knowing until he arrived that Johnson was making whisky. .

The appellant Ev^rs, who was over 25 years of age, complains of the refusal of the' court to submit his application for a suspended sentence. It is contended that article 689, P. C., which states that persons over 25 years of age who are convicted of violating the liquor laws shall not be entitled to the benefits of the suspended sentence law, is unconstitutional and void in that it is discriminatory, and that the trial court should have submitted Evers’ application for suspended sentence under article 776, C. C. P. We are not in accord with this contention. This court has held against appellant’s contention in Davis v. State, 93 Tex. Cr. R. 192, 246 S. W. 395, and Guse v. State, 97 Tex. Cr. R. 212, 260 S. W. 852.

The appellants Johnson and Evers complain in bills of exception 3 and 4, respectively, of the action of the court in permitting the sheriff to testify to the finding of the still; and mash and to seeing the appellants manufacturing said whisky, because the officer did not have a search warrant at the time in question. The court qualifies these bills by stating that the still and mash found and seized by the officers were “on uninclosed lands and in woods, and not on premises occupied by the defendants.” These bills, as qualified, show no error. Cornelius on Search and Seizure, § 12; MacDaniel v. United States (C. C. A.) 294 F. 769; Essgee Co. v. United States, 262 U. S. 151, 43 S. Ct. 514, 67 L. Ed. 917; Dozier v. State, 105 Tex. Cr. R. 413, 289 S. W. 45.

There are several other bills of exception in the record, but as presented and qualified by the court they show no error. The only serious question in this case is the complaint made to that portion of the court’s charge relative to appellants’ defense that the whisky was being manufactured for medicinal purposes, and to the refusal of the court to give to the jury appellants’ special charge on this issue. The portion of the court’s general charge complained of is as follows:

“Or if you shall find that Dock Johnson on the occasion in question manufactured spirituous liquor capable of producing intoxication, then if you shall further find that same was manufactured for medicinal purposes, or if you have a reasonable doubt thereof,, you will find the defendant Dock Johnson guilty,” etc.

The appellants’ special charge which was-refused by the court was to the effect that if the jury believed from the evidence that the whisky was manufactured for medicinal purposes, or if they had a reasonable doubt thereof, to acquit the appellants. From an inspection of the court’s general charge, as cjuotecl above, it will be observed that tbe court instructed tbe jury to convict'tbe appellant i Johnson although they found from the evidence that he was manufacturing the whisky in question for medicinal purposes, or if they had a reasonable doubt thereof. This was clearly error. The evidence having raised this issue, the court should have instructed the jury, either in his general charge or by giving appellants’ special charge, to the effect that the appellants would not be guilty of the offense charged against them if the whisky was being manufactured for medicinal purposes, or if there was a reasonable doubt thereof.

For the error above discussed, the judgment of the trial court is reversed and re-manded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
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