
    WIGGINS v. STATE.
    (No. 10590.)
    Court of Criminal Appeals of Texas.
    Feb. 23, 1927.
    Rehearing Granted March 7, 1928.
    1. Criminal law <&wkey;>37l(10) — Where accused set up defense that liquor manufactured was for his use as medicine, evidence of concealment and transportation of still was admissible to rebut innocent intent.
    In prosecution for manufacturing intoxicating liquor, where accused’s defense was that he was making whisky for his use as medicine, showing by state of purchase of still, its concealment from family or any one else, and removal from home county to another county held admissible, since any relative fact rebutting innocent intent arising from defense was admissible.
    2. Criminal law <&wkey;>369(2) — That material testimony involves another offense is not ground for rejection.
    That testimony material to development of any case on trial may involve some other offense is not ground for its rejection.
    3. Criminal law <&wkey;600(3) — Continuance In liquor prosecution held properly denied, where truth of what witness would testify to, as stated in application, was admitted.
    In prosecution for manufacturing liquor, continuance held properly denied where state not only admitted that witness would testify as stated in application, but also admitted testimony would be true.
    4. Criminal law &wkey;>l 115(2) — Bill showing un-sworn jury was permitted to dine after counsel marked lists, but not showing lists were passed or known or jury approached, held not to ,manifest error.
    In prosecution for manufacturing intoxicating liquor, bill of exceptions complaining that jury was permitted to go to dinner after jury lists had been delivered to counsel, jurors interrogated, and lists marked, but before lists were read and jurors sworn held not to manifest error, it not being shown that lists were passed upon or made known to any one else, or that any of jury panel were approached or made aware who had been selected.
    On Motion for Rehearing.
    5. Criminal law <&wkey;369(6) — Where defense was that liquor was manufactured for medicine, cross-examination of accused showing concealment of still held relevant.
    In prosecution for manufacturing intoxicating liquor where accused set up defense that he manufactured it for his own use as medicine, cross-examination of accused showing concealment of still held relevant.
    6. Witnesses <9=52(7), 269(12) — Where accused claimed liquor was manufactured for medicine, cross-examination of wife that she had never seen still held error, being against statute and not germane to direct examination.
    In prosecution for manufacturing intoxicating liquor where accused set up defense that liquor was for medicine, testimony of accused’s wife, on cross-examination, that she had never seen still before in her life after she testified to state of accused’s health on direct examination, held error; being violative of statute forbidding wife to become witness against husband and not germane to direct examination.
    7. Intoxicating liquors <&wkey;226 — Testimony of accused’s son on cross-examination that accused was able to buy whisky for medicine held irrelevant, where defense was that liquor was manufactured for medicine.
    In prosecution for unlawful manufacture of intoxicating liquor where accused set up defense that liquor was being manufactured for his use as medicine, testimony of accused’s son on cross-examination, over objection to effect that accused was able to buy whisky needed for treatment, held irrelevant.
    8. Criminal law <§=600(4) — Admitting, to prevent continuance, truth of doctor’s statement concerning defendant’s health precluded state’s testimony on health.
    In prosecution for manufacturing intoxicating liquor where defense of accused was that liquor was being manufactured for his use as medicine, admission, to prevent continuance, of truth of doctor’s statement to effect accused had. been treated for asthma and other ailments held to preclude testimony of other witnesses bearing upon accused’s ill health.
    Appeal from District Court, Hardin County ; Thos. B. Coe, Judge.
    
      Jim Wiggins was convicted of manufacturing intoxicating liquor, and lie appeals.
    Reversed and remanded.
    Coe & Briggs, of Kountze, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., botli of Austin, for the State.
   LATTIMORE, J.

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

Officers discovered appellant and one Day engaged in the manufacture of liquor, their still being set up in a baygall thicket something like a half mile from the camp occupied by appellant and Day, and in which they claimed to be staying while engaged in trapping. The place of arrest was in Hardin county. Appellant lived in Tyler county.

There are a number of bills of exception in the record, all of which have received our careful attention.

We discuss the errors complained of in the order in which they are presented in the brief. There are several bills of exception complaining of testimony elicited from appellant on cross-examination relative to his purchase of the still in question in Polk county, to his removal of same to Tyler county where he lived and where he said he concealed the still in some bushes and did not take it to his home; also that he brought the still from Tyler county down into Hardin county, where he was arrested, and engaged in the making of the whisky. Appellant’s defense in this ease was that he was making whisky for his use as a medicine. That being the case, we think it entirely permissible for the state to show his purchase of the still and his concealment of it from his own family or any one else; also his removal of the still from his home county and bringing it into another county where he set it up at a point quite a distance from the camp which he and his friend were occupying. Such proof was not open to the objection that it was receiving evidence of a separate and distinct offense. Proving one the maker of whisky necessarily involves in most eases proof of his possession of the still and equipment. When the defense interposed is that such making was done under one of the exceptions allowed by the statute, any relative fact rebutting such innocent intent becomes admissible. That testimony material to the development of any ease on trial may involve some other offense is not ground for its rejection.

Appellant complains of the overruling of his application for continuance. The bill shows that the state not only admitted that the witness would testify as stated in the application, but also admitted the testimony would be true. There was no error in overruling the application.

There is also a complaint of the fact that the jury, lists ha.d been delivered to counsel for the state and appellant, and they had interrogated the j.urors, and marked their jury lists; that the jury were permitted to go to dinner before the lists were read and those jurors, who had been selected, were sworn. We are unable to perceive any merit in this objection. It is not shown that the lists which had been passed upon were made known to any one, or that any of the jury panel were approached or in any wise made aware who had been selected. When the jurors came back to the courthouse, the jury lists as'agreed upon seem to have been called and jurors so selected to try this ease. We are unable to agree that the bill presenting this complaint manifests error.

There is a bill of exceptions complaining of bringing the equipment, found by the officers in use by appellant, into the courtroom. No improper use of it in any way is shown.

Bills of exception Nos. 5 to 9, inclusive, present appellant’s complaints of testimony relative to the purchase of the still, its concealment, and its being brought by appellant from Tyler county to the county where he was engaged in using same at the time he was arrested. We have discussed this matter above.

Bill No. 10 shows that appellant’s wife was used by him to establish the fact that he needed whisky for medicine, etc. She was asked by the state, on cross-examination, if she had ever seen the still which was in evidence, and, over objection, she was required to say that she had never seen it in her life. This seems in entire consonance with appellant’s own testimony — he having sworn that he did not take the still to his house, but concealed it in bushes. We perceive no injury possible from the testimony.

Appellant’s son took the stand in his behalf and testified that for several years the health of appellant was poor; that from February, 1926, to the time of this trial in June of said year he had lived with appellant; and that during that time the health of appellant had been “mighty poorly.” On cross-examination, this witness testified that the family kept a boarding house and had from 12 to 18 boarders and were getting along all right. Over objection, he stated appellant had always been able to employ doctors and buy medicine when he needed it; also that witness had never bought any whis-ky on, prescription for appellant; also that witness had always been able and willing to aid appellant in any way, but had never been called on to procure whisky for appellant or the services of a doctor; also that witness had never seen the still in question at appellant’s home. We have given serious consideration to each of these bills and fail to perceive any error that could have affected the rights of the appellant in any of them. If it be true, as witness testified, that his father’s health had been poor for a number of years, it would appear not too remote to show that this witness had never been called on to procure the kind of medicine that his father said he needed, and it certainly could not be improper for witness to testify that he was always able, ready, and willing to get medicine for his father, nor for him to state that he had never observed this still at his father’s house. None of the bills to the reception of testimony show that anything was permitted in evidence which did not have to some extent a bearing upon the questions involved in this ease. Appellant seems to have been allowed full latitude in the development of his theory, and we see no reason to complain that the state was allowed a fair latitude in combating the theories of the defense. The evidence overwhelmingly and without contradiction showing that appellant was engaged in the manufacture of liquor, and it appearing that the jury have given him the lowest penalty, we are unable to perceive any room for valid contention that any of the matters referred to were capable of any injury. Appellant had several barrels of mash near where the still was, the testimony showing the mash was ample to make quite a number of gallons of whis-ky. Appellant’s reason for having the still down in Hardin county, and for not putting it up somewhere reasonably close to his camp, the quantity of mash he had, and the entire testimony seem ample to justify the jury in concluding there was no substance to the claim interposed, viz., that appellant was making the whisky for medicinal purposes alone.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

MORROW, P. J.

According to the state’s testimony, officers located a still in a thicket. After watching the still and listening to a conversation for a while, they rushed upon the still and found the appellant and Day. The still was in operation and was running whisky. On the ground were a number of utensils, including bottles, jars, buckets, an axe, barrels of mash, and a jug of whisky.

According to the testimony of the appellant, given in his own behalf, he was 63 years of age. In company with Day, who was 70 years old, he was engaged in trapping. They had built a wooden shack in which they lived, and decided to make some whisky for medicinal purposes. They had only begun operations when Officers Gardner and Daniels appeared, made the arrest, and took possession of and destroyed the still. According to his testimony, appellant had not at any previous time manufactured intoxicating liquor. Upon cross-examination, there was elicited from the appellant, over his objection, testimony to the effect that hb had possessed a still about a year before which he had gotten from a man by the name of Elkins, in Polk county; that he had taken it to Tyler county ; that he had not taken it to his home, but had put it in some bushes and later brought it to Hardin county, where it was found at the time of his arrest, which was at a point about three-fourths of a mile from the eámp-house. He testified that he did not put it at his eamphouse because he did not want ány one to know that lie had such a thing. He claimed and testified that for 7 years he was unable to perform any manual labor; that he was suffering from physical ailments for which it was necessary to use whisky; that he had used it and did use it upon the advice and under the direction of physicians; that he took four drinks a day.

It is the state’s contention that the testimony mentioned, which was elicited upon the appellant's cross-examination, was relevant upon the issue of the intent of the appellant in making the whisky. Appellant contends that the peculiar circumstances are such as to render the receipt of the testimony mentioned improper and prejudicial to a degree that demands a reversal of the judgment. To obviate a continuance, the state made the following admission:

“The state admits as true the following facts: That Dr. W. L. Selman removed from Hicks-baugh, Tex., about 2 years before this date; that prior thereto he was the physician of'the defendant and treated him for asthma and other ailments, covering a period of 5 or 6 years; that during said period the health of the defendant was bad, and during said period the defendant was treated by the said witness and was advised by said witness to use and take whisky for his health, and that the use of whisky would be good for defendant’s health.”

It is quite plausibly contended that the fact that the appellant moved the still from Polk county to Tyler county would be a matter of no weight as bearing upon the issue of intent, but that proof of it being prima facie an extraneous offense (that of transporting equipment), its receipt in evidence was inhibited by the rule which forbids the introduction of proof of other offenses not coming within some of the permitted exceptions to the rule. It is conceived that the concealment of the still would be a circumstance usable by the jury to combat the appellant’s testimony that his intent in making the whisky was a lawful one. The writer is of the opinion that, so far as the testimony elicited upon the cross-examination went to show the concealment of the still, it was admissible and relevant, See Graeb v. State, 104 Tex. Cr. R. 293, 283 S. W. 819. The appellant introduced his wife who testified, and the testimony elicited by him from her related solely to the state of his health and corroborated his own testimony. Upon cross-examination, over appropriate objections, she testified that she had never seen the still around her house; that she had never seen it before in her life. Against this testimony the point is made that it was vio-lative of the statute which forbids the wife to become a witness against her husband; that, not being germane to the direct examination, its receipt was error. Appellant, through his counsel, contends that the testimony thus elicited from his wife was calculated to impress the jury that the appellant was conscious of an unlawful act in possessing the still and in consequence suppressed the knowledge that he had it from his wife. This cross-examination of' the wife, we think was improper.

A son of the appellant was introduced in his behalf on the issue of his father’s physicial condition. On cross-examination, over objection of the appellant, the state elicited from the witness testimony to the effect that his father had always been able to buy medicines and whisky needed for his treatment. The relevancy of this testimony is not perceived. The position taken by the appellant, in his testimony, was that in making the whisky he was engaged in a lawful act — that of making whisky for his use as medicine — and that his financial condition with reference to his ability to procure whisky by other means was not a proper subject of inquiry for the reason that it was his right to make whisky for medicine, notwithstanding he might have been able to purchase it. He had introduced no testimony upon the subject of his inability to purchase, and the testimony mentioned came in the nature of original testimony for the state. We do not find, by way of bill of exceptions, any complaint of the cross-examination of this and other witnesses as bearing upon the appellant’s ill health and the necessity for the use of whisky for his bad health. That question, however, was foreclosed by the admission which has been copied above, and the state was in no position to contradict the fact that the appellant had been suffering from asthma and other ailments for a period of 5 or 6 years, and had been treated therefor by a physician who had advised him that whisky was good for his ailments and should be used therefor. Branch’s Ann. Tex. P. C., § 325; Davis v. State, 52 Tex. Cr. R. 332, 107 S. W. 855; Roberts v. State, 65 Tex. Cr. R. 62, 143 S. W. 614; Davis v. State, 68 Tex. Cr. R. 400, 152 S. W. 1097. The improper testimony elicited from his son tends to controvert these conceded facts in that it was calculated to convey to the jury the idea that, if the appellant was really in need of whisky and able to buy it, it was not necessary for him to have engaged in the unlawful manufacture of it.

Upon reconsideration and viewing the matter of which complaint is made in the light of the entire record, we are constrained to the view that the motion should be granted. It is accordingly ordered that the affirmance be set aside, the judgment of the trial court reversed, and the cause remanded. 
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