
    RICHARDSON v. STATE.
    (No. 10775.)
    Court of Criminal Appeals of Texas.
    May 11, 1927.
    Rehearing Denied Oct. 19, 1927.
    1. Criminal law <&wkey;l 120(8) — Admitting testimony that person "having charge of house where whisky was made stated to owner about “those boys making whisky” held not shown to be error absent showing who was meant by “those boys.”
    In prosecution for manufacturing intoxicating liquor in an old house which was in charge of a particular person, admitting testimony of such person that'he had made a statement to the owner of the house about “those boys making whisky” held not shown tó be error, where there was nothing in bill of exceptions, except merest inference, to show who was meant by expression “those boys.”
    2. Criminal law <&wkey;>338(2) — Testimony as to tracks found by officer at window of house used in manufacturing liquor held not inadmissible.
    In prosecution for manufacturing liquor, testimony that officer, after shooting into door and entering house, observed tracks of two different persons at a window, showing that persons had jumped out of the window, and testimony that the tracks were large, held competent and properly admitted; there being no attempt made to say that the tracks were those of defendant and another.
    3. Criminal law <&wkey;>742(2) — Refusal to instruct that person carrying sugar and meal to house containing still was accompiice held not error.
    In prosecution for manufacturing liquor, where officer testified that, after raiding house, he found still running full blast, about eight barrels of mash, and other equipment, and where particular witness testified that on the day preceding the raid he had carried a quantity of sugar and meal to the house at defendant’s request, held, refusal to instruct that such witness was an accomplice and submission of such question to the jury was not error.
    On Motion for Rehearing.
    4. Criminal law <&wkey;784(l) — In prosecution for manufacturing liquor, refusal to instruct on law of circumstantial evidence held not error.
    In prosecution for manufacturing intoxicating liqu'or, where officer testified that, after shooting into door of house, he entered, and found still running in full blast, and saw tracks, indicating that two persons had jumped from window, where another witness testified to having seen defendant and another enter the house earlier in the morning and to having seen them jump from the window following the shots, held, refusal to instruct on the law of circumstantial evidence was not error.
    5. Criminal law <&wkey;784(!) — Necessity for instruction on law of circumstantial evidence depends on facts of particular case.
    Whether or not the court is called on to instruct on the law of circumstantial evidence depends on the facts of each particular case.
    Appeal from District Court, Nacogdoches County; C. A. Hodges, Judge.
    Guy Richardson was convicted of manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    Seale & Denman, of Nacogdoches, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Conviction for manufacturing intoxicating liquor; punishment, one year in the penitentiary.

An old house stood in a field belonging to one Garrison. Appellant had no right of oc-cupanee or coptrol over said house. Mr. May-field had charge of Mr. Garrison’s place. Appellant and G. C. Ross met Mayfield one day and told him they were going to make cora' whisky in that house. In some way the sheriff got wind of the matter, and about the 10th of December, 1926, in company with two other men, he went to said house. He approached the house from the north. When near the door he fired a couple of shots with a shotgun into the door. He then went into the house and found no one in same. A still in the house was running in full blast, manufacturing whisky. Bottles, mash, a fully equipped still with a fire under it, charcoal, wood, a cooling barrel, and about eight barrels of mash were in the house. At a south window the sheriff observed tracks of two different people. The officer said that the parties had jumped out of the'window. The tracks were large tracks. Jim Powdrill testified that on the morning of the raid he saw appellant and Ross go to the old house in question. They remained until the sheriff approached the house. He saw appellant and Ross jump out of the window. He said they went out of the window when the gun fired, and ran away. In this condition of the record we are not inclined to attach much importance to appellant’s complaint at the refusal of the trial court to submit the case upon the law of circumstantial evidence. While no witness actually saw appellant put the mash in the still, or light the fire under it, or take the whisky from under the worm, still when witnesses testify that one is seen to go into a room and remain several hours, and then, at the approach of another party, comes out of said room, and the other party entering finds whis-ky in process of manufacture, this is certainly such a complete exemplification of the rule of juxtaposition as to amount to direct evidence.

In his brief appellant complains that Mr. Mayfield was permitted to testify that he made a statement to Mr. Garrison -about “those boys making whisky.” The court qualifies the bill by setting out in question and answer form what the record shows in regard to this testimony. It appears that witness Mayfield was asked the question, “Did you make any statement to Mr. Frank Garrison about those boys making whisky?” to which the witness answered, “Yes, sir.” It appears from the qualification that the only objection made to this was that it was “not in their presence.” Witness was asked to relate what he told to Mr. Garrison, and the court sustained an objection to this. So the matter was not gone into. There is nothing in the bill of exceptions, except the merest inference, to show who were meant by the expression “those boys.” We cannot supply by inference something which is necessary to give vitality to an objection. We have no means of knowing from the bill what was said in the conversation, because the court sustained the objection to it.

We find nothing in appellant’s objection to the testimony of the officer as to the tracks. The sheriff did not attempt to say the tracks were those of appellant and Ross, or that they l'esembled the tracks of appellant and Ross. He merely testified to seeing tracks which indicated that the makers thereof had jumped out of the window. In view of the testimony of Powdrill that he saw appellant and Ross come out of the window, the testimony seemed material, and we deem it competent.

Appellant has .a bill of exceptions to the refusal of the court to instruct the jury, in so many words, that the witness Young was an accomplice. Young was introduced as a witness on behalf of appellant, but on cross-examination the state elicited from him the fact that on the day before the raid in question he carried a quantity of sugar and meal to said old house at the request of appellant and Ross. We would have much doubt as to the proposition that this made Young an accomplice, to the manufacture of whisky taking place the day after the meal and sugar were carried to the house. The officers found a still in operation, mash boiling, and liquor running out at the worm. The fact that Young carried sugar and meal to the house the day before this discovery by the officers would make it altogether improbable that the meal and sugar so carried by Young had been converted into mash and were being manufactured into whisky at the time the officers discovered the still. Many decisions are cited by Mr. Branch in section 712 of his Annotated P. O., holding it proper to submit to the jury the question as to whether a given witness is an accomplice, when that issue is at all in doubt. This course was followed by the learned trial judge. We deem his submission of the issue to the jury proper under the facts of this ease.

Being unable to agree with the contentions made by appellant, and finding no error in the record, the judgment is affirmed.

MORROW, P. J., not sitting.

On Motion for Rehearing.

HAWKINS, J.

Appellant’s motion for rehearing seems to be based on the assumption that our original opinion is in conflict with former holdings in Weaver v. State, 96 Tex. Cr. R. 273, 257 S. W. 253, and Belson v. State, 97 Tex. Cr. R. 44, 260 S. W. 197, on the question of the necessity of the court to instruct on the law of circumstantial evidence. AVhether or not the court is called upon to instruct on that subject must of necessity depend on the facts of the particular case. When the sheriff approached the house he fired into the house twice with a shotgun. Immediately upon the shots occurring a witness saw appellant and one G. O. Ross jump from the house through a window on the opposite side from the officers. Appellant and Ross ran away and were not seen by the officers. This same witness had seen these parties going to the house on the morning of the day the raid occurred. There is no question in this witness’ testimony about the identity of appellant as one of the parties who jumped out of the house and fled. What was found in the house has been sufficiently set out in our former opinion. Another witness, who seems, to have had general charge of the premises upon which the house was situated, testified as follows:

“Guy (appellant) and G. O. Ross met me one day and said they were going to make some shinny do-wn there — that is, com whisky — and they wasn’t going to interfere with me, and wasn’t going to give me any trouble whatever. He said they were going to make whisky down at that house.”

Further relating the conversation between him and appellant and Ross,, the witness testified:

“When I had the conversation with Guy Richardson and Ross with reference to making whisky, they did not tell me any certain amount that they had made. They said, We are making some whisky here,’ or ‘shinny’ rather, ‘and we don’t mean to bother or give you any trouble hereafter, with our work going on there.’They did not make any statement as to the amount they had made. The morning that I met Ross and Richardson they had a sack with something in it. It was a tow sack, and it had a bundle of some kind in it. It seemed, as well as I remember, about one-third full, on their shoulder, wrapped up and tied. It was in the evening-; it was not in the morning. I could not swear positively what was in that sack, only by what they said. They did not say what was in the sack, but they said what they had . been doing, and what they expected to do hereafter; that was, making a little shinny. I consider shinny and corn whisky the same thing. Corn whisky is what is known as shinny.”

We were originally and still are of the opinion that the testimony related took the case-out of the class demanding a charge on circumstantial evidence. In Weaver’s Case, supra, the defendant was positively identified as being present with others eating dinner at a point some 75 yards from the point where the still was afterward found in operation. When the still was discovered some one ran away from it. The officer who saw the fleeing party h¿d never seen the defendant before and he was not certain as to his identity, but only expressed an opinion that it was the defendant. It will be observed that Weaver was never identified positively as being closer than 75 yards from where the still was operated. This significant language was used by Judge Morrow in the opinion:

“His flight, if in fact he fled, would give much strength to the inference of guilt, and it may ~be possible, conceding his identity as the fleeing man, that the case would be one of direct evidence. However, his identity 'as the man who fled is not conceded. The only witness who throws light upon the subject had no acquaintance with the appellant, saw him but momentarily as he dashed through the shrubbery, saw but a part of his person, and so incomplete was his view that the witness was unable to give any definite description of the person who fled or of any peculiarity in his apparel or movements which would furnish definite identification.”

No such uncertainty prevails in. the present case. Appellant was positively identified by a witness who knew him well. Because his testimony may have become issuable from a denial of the truth of it by appellant would in no -wise change the rule. In Belson’s Case, supra, the state was evidently relying upon a statement made by the defendant as taking the case out of the rule as to circumstantial evidence. Upon that point this court said:

“We have perceived no direct evidence that the appellant manufactured the whisky. As stated before in this opinion, there are circumstances which would support such an inference. The declaration of the appellant was not so unequivocal as to bring the case within the purview of one resting alone upon direct evidence.”

Believing this case to have been properly decided, appellant’s motion for rehearing is overruled. 
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