
    STEVENSON v. STATE.
    (No. 10120.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1926.
    Rehearing Denied Feb. 9, 1927.)
    1. Criminal law &wkey;5200(4)--Conviction for possessing still did not bar prosecution for manufacturing liquors.
    Former conviction for possession of still was not a bar to prosecution for manufacturing intoxicating liquors.
    On Motion for Rehearing.
    2. Intoxicating liquors <&wkey;173 — Possession of stiil and operation of still in manufacture of whisky are two separate offenses.
    Possession of still for purpose of manufacturing whisky and operation of still in manufacture of whisky are two separate offenses.
    3. Criminal law &wkey;>292(2) — Plea that on separate indictments accused’s conviction is on identical transaction should' set out facts necessary to show identity.
    Plea presenting contention that on separate indictments accused’s conviction is on identical transaction, to be sufficient, should set out facts necessary to show identity.
    4. Criminal law <&wkey;>295 — Burden rests on accused to show identity of transaction on which accused is on trial with that relied on in bar.
    Burden rests on accused to make proof showing identity of transaction on which accused is on trial with that relied on in bar.
    Commissioners’ Decision.
    Appeal from District Court, Hunt Comity; J. M. Melson, Judge.
    Pink Stevenson was convicted of unlawfully manufacturing intoxicating liquor, and he appeals.
    Judgment reformed and affirmed.
    Jas. W. Bassett, of Amarillo, and H. D. Carpenter, of Greenville, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeek, for the State.
   BAKER, J.

The appellant was convicted in the district court of Hunt county for unlawfully manufacturing intoxicating liquor, and his'punishment assessed at three years in the penitentiary.

We find five bills of exception in the record, in all of which complaint is made to the refusal of the court to permit the appellant to introduce in evidence or show that he had been convicted for the unlawful possession of a still, etc., prior to this trial, contending that said former conviction for the possession of a still would be a bar to the instant case, wherein he was being tried, and was convicted, for manufacturing intoxicating liquors. This contention is untenable. Possessing a still or equipment and manufacturing intoxicating liquor are two separate offenses. Chandler v. State, on Rehearing, 89 Tex. Cr. R. 601, 232 S. W. 337; Calloway v. State, 99 Tex. Cr. R. 438, 270 S. W. 171.

The sentence imposed is for three years, and is here reformed to read not less than one nor more than three years in the penitentiary.

The judgment of the trial court, as reformed, is affirmed.

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.

On Motion for Rehearing.

MORROW, P. J.

In the appellant’s plea of former conviction are the following aver-ments: That he was charged in two separate indictments, Nos. 4000 and 4001, with two separate offenses respectively, the possession of a still and equipment for the manufacture of intoxicating liquor, and of the manufacture of intoxicating liquor; that in cause No. 4000 the trial resulted in a verdict of guilty of the possession of a still and equipment for the manufacture of intoxicating liquor, which verdict had not been approved and had not been set aside. In failing to show the judgment to be final, the sufficiency of the plea is questionable. See Calloway v. State, 99 Tex. Cr. R. 438, 270 S.W. 171. Appellant claims that the state having carved once, it is prohibited by law from carving again. The principle for which he contends is exemplified in many judicial announcements. See Simco v. State, 9 Tex. App. 348; Wright v. State, 17 Tex. App. 158; Whitten v. State, 94 Tex. Cr. R. 144, 250 S. W. 165; Coon v. State, 97 Tex. Cr. R. 647, 263 S. W. 914; Colter v. State, 94 Tex. Cr. R. 96, 252 S. W. 168; Plunk v. State, 98 Tex. Cr. R. 142, 265 S. W. 158; Vrazel v. State, 90 Tex. Cr. R. 162, 233 S. W. 842. Many others might be mentioned.

At the time of his arrest, the appellant possessed a still and was operating it and making whisky. According to the averments in his pleading, previous to the present trial, he had been convicted for possessing a still. On the present trial, his conviction was for the manufacture of whisky. The possession of a still for the purpose of manufacturing whisky is one offense; the operation of the still in the manufacture of whisky is another offense. Ordinarily, in the nature of things, the possession of a still would precede putting it in operation. The still in the present case was found in a remote place in the woods. The evidence fails to suggest that any other person was connected with it. It must, by some person, have been brought to the place where it was situated, the parts of it assembled, connected, and put in condition for use. The circumstances point to the appellant alone as the one connected with the still, both its possession and operation. If there be in the record any evidence suggesting that the appellant’s connection with the still was the manufacture of whisky alone, it has escaped our attention. It is possible, of course, that a still might be possessed by one person and another’s connection with it be nothing more than assisting in its operation on some occasion. In such a case, the issue of a single transaction might arise.

The plea interposed by the appellant in the present instance states but the conclusion of the pleader that the previous conviction and the present were upon the identical transaction. The plea presenting the contention that on separate indictments his conviction is upon the identical transaction, to be sufficient, should set out the facts necessary to show the identity. See Williams v. State, 13 Tex. App. 288, 46 Am. Rep. 237; Dupree v. State, 56 Tex. Cr. R. 562, 120 S. W. 871, 23 L. R. A. (N. S.) 596, 133 Am. St. Rep. 998; and numerous other cases collated in Branch’s Ann. Tex. P. C. § 630, subd. 1. Likewise, the proof should be such as to show the identity of the transaction on which the accused is on trial with that relied upon in bar, and to make this proof the burden rests upon the accused. Campbell v. State, 2 Tex. App. 187; Robinson v. State, 53 Tex. Cr. R. 565, 110 S. W. 908; Johnson v. State, 34 Tex. Cr. R. 115, 29 S. W. 473. On the sufficiency of the evidence to meet this requirement, see Samuels v. State, 25 Tex. App. 537, 8 S. W. 656; Augustine v. State, 41 Tex. Cr. R. 69, 52 S. W. 77, 96 Am. St. Rep. 765; Spannell v. State, 83 Tex. Cr. R. 418, 203 S. W. 357, 2 A. L. R. 593. Also Branch’s Ann. Tex. P. C. 323, and cases collated in section 632.

Upon the plea as framed and the facts adduced, we are impressed with the view that this court would not be warranted in holding that the trial judge committed error in failing to submit the question of former conviction to the jury.

The motion for rehearing is overruled. 
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