
    MYERS v. STATE.
    (No. 8118.)
    (Court of Criminal Appeals of Texas.
    Feb. 20, 1924.)
    ). Criminal law &wkey;622(2) — Denial of severance which would have necessitated continuance held not error.
    .Denial of a motion for a severance in order to render available to defendant testimony of another, arrested in connection with the same transaction, held- not error, under Code Cr. Proc. art. 727, where granting of the motion would have necessitated a continuance.
    2. Crimina! law <&wkey;595(IO) — Denial of continuance held not error.
    Continuance to enable procurement of particular testimony which was inadmissible hearsay, was properly denied.
    3. Criminal law <&wkey;424(6) — Proof of attempted flight by one arrested with defendant held admissible.
    In a prosecution for the unlawful manufacture of intoxicating liquor, where defendant accounted for the presence of himself and others , at the still where they were arrested by saying that they were searching for property belonging to one of them which it was thought had been taken by persons operating the still, proof that one of the parties arrested with defendant had- attempted flight upon appearance of the officers held admissible against defendant.
    4. Criminal law <&wkey;407(f) — Admitting proof of defendant’s silence after arrest held reversible error.
    In a prosecution for the manufacture of intoxicating liquor, where defendant attempted to establish the lawful presence of himself and others at the still were arrested, and testified that upon approaching the still they saw three men running away from it, held it was reversible error to permit the state to question defendant as to why he had not mentioned the flight of such persons after his arrest; proof of his silence after arrest, a circumstance against him, being inadmissible, under Code Crim. Proc.' art. 810.
    5. Criminal law &wkey;>792(2) — Instruction on law of principal offenders held warranted.
    In a prosecution for manufacture of intoxicating liquor, where defendant attempted to account for the presence of himself and others arrested with him at a still by saying they had gone there to search for property belonging to one of them thought to have been taken by persons operating the still, an instruction on the law of principal offenders held warranted.
    Appeal from District Court, Freestone County; A. M. Blackmon, Judge.
    Jim Myers was convicted of manufacturing intoxicating liquor, and he appeals.
    Reversed and remanded.
    R. L. Williford, of Fairfield, A. B. Gep-pert, of Teague, and R. M. Edwards, of Fair-field, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is the unlawful manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of two years.

Officers, who testified as witnesses, found two stills and a quantity of whisky in a thick woods near a spring or branch. Appellant and several other persons were present. The appellant, a farmer about 40 years of age, bad lived in the vicinity for a number of years. According to his testimony, he had accompanied one Cornwell to the stills at his request to recover some nets and fish which Cornwell claimed to have lost. One of the party carried to the stills appellant’s shotgun and some shells. On approaching the stills some men ran away. It was appellant’s theory that three men committed the offense, and that the presence of appellant and his. companions, including. Cornwell, was for the innocent purpose of looking for Cornwell’s property. Evidence was introduced to the effect that three men, each in a boat, had been seen about the locality of the stills, and their movements in the vicinity were described by witnesses. One of those present at the stills was Frazier, who was also indicted. Frazier continued his case and to have granted appellant’s motion for a severance to secure the testimony would have necessitated a continuance of appellant’s case. The statute expressly declares that under such conditions the severance shall not be granted. Art. 727, C. C. P.

Mrs. Frazier, according to an application for a continuance, would have testified that Cornwell had told her he was going to get appellant to go with him to the stills to get his nets and fish. The hearsay rule apparently would have rendered this testimony inadmissible. Appellant and several other witnesses testified that appellant went to the stills at Cornwell’s request to hunt his nets and fish. When the officers approached, the stills were in full operation, all necessary equipment for making whisky was at hand, and some 15 gallons of whisky were there, all these things apparently being in possession of the appellant, Cornwell, and others. Considering the defensive theory and testimony, the proof of Cornwell's attempted flight when the officers suddenly appeared and commanded the parties to hold up their hands was not improperly received. According to appellant’s testimony and theory, he and Cornwell were acting together, and Cornwell’s act upon the discovery of the parties by the officers was so connected with the transaction' as to render it admissible against the appellant.

Appellant’s testimony in his own behalf is, in substance, this: That the locality of the stills was known to him. That three strangers had been seen upon the river and near the locality of the stills. That they were using boats, which were covered with tarpaulin, going in the direction of the stills. That they had been seen with something in sacks. That when, appellant and the others approached the stills the persons ran off. Neither the number or the identity of the persons was known to the appellant. About 80 minutes later the officers appeared, drew their pistols, ordered the appellant and others to hold up their hands, and put them under arrest. On cross-examination, appellant was asked by the state why he did not tell the officers about the three men. The state also elicited from the officer who made the arrest that appellant, at the time, had not mentioned the three men or any men running away from the stills.

Objection was made to each of these matters upon the ground that they were vio-lative of the statute on confessions. That statute has been construed as inhibiting proof against the accused on trial of his silence at the time of his arrest. Stanton v. State, 94 Tex. Cr. R. 367, 252 S. W. 619; Branch’s Ann. Tex. P. C. § 59 ; Weaver v. State, 43 Tex. Cr. R. 346, 65 S. W. 634; Thompson v. State (Tex. Cr. App.) 78 S. W. 691. Silence of one when accused of crime is a circumstance against him (Underhill on Orim. Ev. § 208); but while under arrest he is not called upon to speak, and proof of his failure to do so should be 'rejected (article 810, C. C. P.; also Fulcher v. State, 28 Tex. App. 465, 13 S. W. 750; Frazier v. State, 52 Tex. Cr. R. 131, 105 S. W. 508; Nolen v. State, 14 Tex. App. 474, 46 Am. Rep. 247).

The circumstances were such as raised the issue of principals. There was no error in instructing the jury upon the law of principal offenders.

Because of the error pointed out, the judgment is reversed, and the cause remanded. 
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