
    SIMMONS v. STATE.
    (No. 9353.)
    (Court of Criminal Appeals of Texas.
    Nov. 18, 1925.
    Rehearing Denied Feb. 10, 1926.)
    1. Indictment and information <&wkey;72 — Indictment, charging manufacture of spirituous, vinous, and malt liquor in conjunctive, held sufficient.
    Indictment, charging manufacture of spirituous, vinous, and malt liquor in the conjunctive, is sufficient, notwithstanding the statute states the offense in the disjunctive.
    2. Intoxicating liquors &wkey;>223(l) — Proof of manufacture of either spirituous, vinous, or malt liquor is sufficient, though indictment charges offense conjunctively.
    Notwithstanding indictment charges manufacture of spirituous, vinous, and malt liquor in the conjunctive, proof of manufacture of either spirituous, vinous, or malt liquor is sufficient.
    3. Intoxicating liquors <&wkey;22I— State need not allege or prove that liquor is not manufactured under permit.
    In prosecution for manufacturing intoxicating liquor, the state need not allege, or prove, that liquor is not manufactured under and by-virtue of permit from state.
    On Motion for Rehearing.
    4. Intoxicating liquors <&wkey;238(l)— Evidence that liquor was manufactured for sale, and not for medicinal purposes, sufficient for jury.
    In prosecution for manufacture of Jiquor, which accused claimed was for medicinal purposes, evidence held sufficient for jury on whether some of liquor was manufactured for sale, rather than for medicinal purposes.
    Commissioners’ Decision.
    Appeal from District Court, Smith County; J. R. Warren, Judge.
    Kid Simmons was convicted of manufacturing liquor, and he appeals.
    Affirmed.
    Simpson, Lasseter & Simpson, of Tyler, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State. .
   BERRY, J.

The appellant was convicted in the district court of Smith county for the offense of manufacturing liquor, and his punishment assessed at confinement in the penitentiary for a term of one year.

Appellant sought to quash the indictment because it appears from the face thereof that the defendant is charged with the unlawful manufacture of spirituous, vinous, and malt liquor then and there capable of producing intoxication; and the defendant urges that there is no such offense on the statute books and that the only offense thereon is the offense of manufacturing spirituous, vinous, or malt liquor; in other words, it is the contention of the appellant that, as the statute charges the offense disjunctively, it is error for the indictment to charge it con-junctively. This contention cannot be sustained. On the contrary, it was proper in this ease to charge the elements of the offense conjunctively in the indictment, and it was sufficient under such indictment to show that he had manufactured either spirituous, vinous, or malt liquor.’ Billings v. State, 99 Tex. Cr. R. 653, 271 S. W. 607.

Appellant contends that as it is not shown that defendant was not manufacturing the liquor under and by virtue of a permit to manufacture same from the comptroller of the state of Texas, and it not having been shown that he .was not manufacturing the same under a permit given by the comptroller under the laws of this state, the jury should have been instructed to presume that he had such permit and had a right to manufacture said liquor. This contention cannot be sustained. Under our statutes and decisions, the state is not required to either allege or prove that liquor is not manufactured under and by virtue of a permit from the state.

Appellant seriously contends that the facts are insufficient to support the verdict, and that all the testimony showed that the appellant was manufacturing.said liquor for medicinal purposes. Appellant’s counsel make a strong and ingenious argument favorable to this contention. While it is true that the appellant testified that he was manufacturing this liquor for the purpose of using it in liniment and other concoctions, which he used in an effort to cure ailments in his community, and while there was no direct testimony contradicting his statement, yet, we are not prepared to hold that the circumstances were not entirely sufficient to overcome his testimony. Indeed, it has beeome the established rule in Texas that a jury is not forced to accept the undisputed testimony of an appellant in his own behalf or that of an interested witness, but, aside from this rule, we think it clear from the testimony in this case, and especially from the testimony of the appellant himself given on cross-examination that the jury was clearly warranted in finding that the liquor was not manufactured for, medicinal purposes. As supporting this conclusion, we call attention to the fact that the officers found at appellant’s place some whisky, a gallon jug of wine, a 15 or 20 gallon copper still, a cooling trough, a worm, and a 50-gallon lard can full of corn meal mash with sugar and water added. The whisky found had been colored with coloring matter. In addition to this, there were found quite a number of bottles and fruit jars about the place, some of which indicated that they had contained whisky.

Appellant made a voluntary statement to the county attorney, in which he admitted manufacturing liquor, but failed to make any reference to the claim that he was manufacturing if for medicinal purposes. Appellant, on the other hand, claimed that he wanted this whisky for the purpose of making liniment to curé “rheumatiz.” He admitted that he had whisky down in a store where Mr. Hambrick worked. On cross-examination, he admitted that he had been practicing medicine something like 35 years, and that he had been using this recipe that required whisky for something like 14 years, and that it was the same recipe that he had used for something like 14 or 15 years, but failed to explain why he had only been making whisky to use in this recipe for about 4 or 5 months before he was arrested, and also failed to explain why it was necessary to color his whisky in order to use it for medicinal purposes. He also failed to make any reasonable explanation as to why he ran when the officers came down there to search his place. He was also unable to name more than three persons that he had treated with any liniment for the past year and a half or 2 years.

Under this condition of the record, we •think the jury was probably warranted in believing that he at least manufactured quite a bit more whisky than was required for medicinal purposes, and that at least such sur-plusage was manufactured for sale.

Finding no error in the record, it is our opinion that the judgment should be in all things affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court 6f Criminal Appeals, and approved by the court.

On Motion for Rehearing.

HAWKINS, X

In appellant’s motion he refers us to Horak v. State, 95 Tex. Cr. R. 474, 255 S. W. 191, as being in conflict with the conclusions announced in our original opinion. We do not understand any conflict exists. Horak’s Case was reversed for a failure to submit the defensive issue of manufacture for medicinal purposes. That issue was properly submitted here. The motion contains a persuasive argument upon the facts, and we are urged to hold that under the evidence the jury was not warranted in finding against appellant’s claim that he was making the whisky for medicinal purposes. Doubtless able attorneys who represented accused presented the same arguments to the jury without avail. In view of the motion, we have again carefully examined the evidence and have been unable to reach a different conclusion than already announced. The facts warranted the jury in believing that, while the officers were searching in one part of the house, appellant removed the still from the kitchen and secreted it under some brush, where it was found, with the contents yet hot. This, together with other circumstances shown, could fairly be construed by the jury to be inconsistent with the innocent purpose claimed by appellant on the trial.

The controverted issue appears to be one peculiarly within the jury’s province to solve. Having the benefit of all the evidence, and after seeing the witnesses and hearing them testify, they settled the matter against appellant. We think their verdict must stand.

The motion for rehearing is overruled. 
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