
    SMITH v. STATE.
    (No. 7913.)
    (Court of Criminal Appeals of Texas.
    Oct. 8, 1924.
    Rehearing Denied Nov. 12, 1924.
    Application to File Second Rehearing Denied Nov. 26, 1924.)
    1. Intoxicating liquors <&wkey;236(!9)-Evidence held to sustain conviction for manufacturing.
    Evidence, though circumstantial, held to sustain conviction'for manufacturing intoxicating liquor.
    2. Indictment and information <&wkey;l27, 132(3) —Insertion of number of counts in indictment, . and court’s submission of most strongly supported count, held proper.
    Insertion of number of counts in indictment in order to meet proof, and court’s submission to jury of count most strongly supported, held proper.
    
      3. Intoxicating liquors <&wkey;233(2) — Evidence of finding of broken jug beside road and mash on defendant’s boots, seen day before raid, held admissible.
    Evidence of finding of broken whisky jug by side of road, over which Eord truck had recently passed after hasty departure from still, though no one saw defendant throw jug where found, and evidence of substance seen on defendant’s boots the day before raid, which witness took to. be mash, held admissible, in prosecution for manufacturing.
    4. Criminal law <&wkey;1120(8) — •Cross-examination of defendant’s father as to lecturing defendant about manufacturing liquor held not prejudicial.
    In prosecution for manufacturing intoxicating liquor, cross-examination of defendant’s father, as to lecturing defendant about manufacturing liquor, held not prejudicial, where no setting or connection pertinent to such testimony appears.
    5. Intoxicating liquors <&wkey;233(2) — Evidence of finding fruit jar containing whisky held admissible, in manufacturing prosecution.
    In prosecution for manufacturing, evidence of finding fruit jar containing quantity of whis-ky near the still held admissible.
    6. Criminal law &wkey;72i (6) — State’s argument held not to constitute reference to1 defendant’s failure to testify.
    In view of facts, state’s argument, in prosecution for manufacturing intoxicating liquor, to effect that defendant could not prove where he was on morning of raid, if not one of the parties at still who left in the car, held not to constitute reference to defendant’s failure to testify. *
    On Motion for Rehearing.
    7. Intoxicating liquors &wkey;>236(l3) — Evidence held to show that liquor found in raid was intoxicating.
    In prosecution for manufacturing, evidence held to show that liquor found on defendant’s premises, in raid when still was found, was intoxicating.
    Appeal from District Court, Falls County; Prentice Oltorf, Judge.
    Bob Dee Smith was convicted of manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    Nat. Llewellyn and Frank Oltorf, both of Marlin, for appellant
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMÓRE, j.

Appellant was convicted in the district court of Falls county of manufacturing intoxicating liquor, and his punishment fixed at one year in the penitentiary.

Appellant was 28 years of age, but lived with his father, who had a farm and pasture between Marlin and Kosse, not far from the latter town. Officers raided the place on Sunday morning. They heard a car crank and start from a point in the pasture, and' saw two men running toward a barn near the dwelling house. A Ford, with a little truck body, emerged from the woods and drove rapidly toward the barn. A1Í the officers agree that it was driven by appellaht, and that, when it got to the barn, it stopped and appellant jumped from it, ran and threw something in the barn, and then hastened back to the car. The two men who were running from the scene of the still were identified as the Johnsons, and it appears that they are fugitives from justice and have not been arrested. The three men got in the Ford and drove rapidly away on the road toward Kosse. After some investigation at the still, the officers followed, and at a steel bridge about a mile from appellant’s home, on the road to Kosse, they found where car tracks had turned out of the road, and near this place a sack of meal, a sack of malt, and several jars, and also a broken five-gallon glass jug, which smelled of whisky, were found. Going on to Kosse, and about an hour after the raid,' appellant was found át the police station in said town. He was taken into custody by the officers.

We have no doubt as to the sufficiency of the testimony, though circumstantial. Appellant’s presence, his flight, his purchase of material for making mash, and also of a metal container to hold the still, and the finding of the finished product near the still, all are deemed sufficient basis for the conclusion of guilt.

We think it commendable practice to insert a number of counts in the indictment in order to meet the proof; also, that it is shfer for the trial court to select that count most strongly supported by the testimony and submit it, as was done in this case. The indictment was not open to the objections made.

We cannot agree that it was erroneous to allow the state to prove the finding of the broken whisky jug by the side of the road, over which the Ford truck had recently driven, after its hasty departure from the scene of the still. That no one saw appellant throw the jug where it was found would go to the weight of that fact as a circumstance and not to its admissibility. This reasoning applies also to the bill of exceptions, complaining of the testimony that appellant was seen the day before the raid in Marlin, with a substance on his boots which witness took to be mash.

Bill of exceptions No. 9 complains of the fact that the father of the accused was forced to testify on cross-examination that he had talked to appellant ¿bout making whisky — had lectured him. The bill does not state that the father testified that he lectured appellant about making whisky, and, turning to the statement of facts, we observe that, apparently, the witness was asked if be bad not lectured appellant, and bis reply was that be “lectured him; be bad lectured all of his children.” The statement of facts also evidences repeated denials by the father of the fact that he had ever talked to appellant about making whisky. If, however, he had, and if we accepted the statements of the bill as controlling, we do not think the matter materially erroneous. No setting or connection pertinent to said testimony appears, and the matter may have been referred to or asked about as leading up to some other question entirely permissible.

The finding, near the still, of a fruit jar containing a quantity of whisky was also a circumstance admissible in evidence. Oar tracks went near the spot where the jar was found, in a fallen tree top. The special charges refused were in substance the same as those given, or were covered by the main charge.

Three bills evidence complaint of argument by the state’s attorney, said to impinge the rule forbidding reference to the failure of the accused to testify. Observing the facts, we note that the officers swore that appellant drove the car from the still to the barn near his home,. and from this point, with the Johnsons in the car, drove away on the road toward Kosse. Appellant’s mother and brother, who were at the house at the time, and saw the car come by the barn and go off toward Kosse, swore that they did not know who the parties were in the car; they could not tell if appellant was one of them or not. As above stated, the raid took place on Sunday morning, and appellant’s mother testified that he ate breakfast at home that morning and then left the house, and she had not seen him up to the time of the raid. She also swore that they had a Ford with a little truck body on it. There was no dispute of the fact that about an hour after the raid the officers took appellant into custody at the police station in Kosse. In this condition of the record, we do not think argument to the effect that appellant could, but did not, prove where he was on that morning, if he was not one of the parties at the still, and who left in the car, constitutes reference to appellant’s' failure to testify. He was at home that morning, near the still He was in Kosse, a town of some size, that same morning when the officers found him. Nothing suggests that in the interim he was alone, and that no testimony save his own could have accounted for his whereabouts. We think Boone v. State, 90 Tex. Cr. R. 374, 235 S. W. 580, and Singleton v. State, 93 Tex. Cr. R. 109, 245 S. W. 922, and the other authorities cited by appellant, are against his position. The defense asserted that the officers were mistaken in saying that appellant was one of the parties in the Ford truck which left the place where the still was found. If so, the question would arise as to where he was. There being no dispute of the fact that he was at Kosse when found by the officers, it would appear reasonable that, if he was in said town at the time the officers were at the still, he could have produced some one to so swear. As we take it, the arguments made were comments on the failure to produce other testimony, and were not necessarily references to the the failure of the appellant to testify.

The judgment will be affirmed.

On Motion for Rehearing.

Appellant files a lengthy and ingenious motion for rehearing, urging that the state’s case fails because it is not shown that the liquor found by the officers, on the occasion , of the finding of the still and the arrest of appellant, was spirituous liquor. We regret our inability to agree with the contention. In addition to the fruit jar containing whis-ky, which was found a short distance from the still, in the boiler of which was mash, and under it was a fire, from which vapor was rising, because of the apparent removal of the top; and, in addition to the broken glass jug found a few feet from the route taken by appellant and his companions when they fled from the scene, which glass jug manifested the odor of whisky, in addition to the fact that an analysis of the contents of the still showed same to contain alcohol in excess of 8 per cent, by volume, and that the contents of the fruit jar mentioned contained 35 per cent, alcohol by volume, we might observe that it was in evidence that appellant fled in his shirt sleeves, and that near the still was found a • blue serge coat, in the pocket of which was a day book, containing some interesting memoranda regarding meal, chops, sugar, corn malt, whisky, etc. It was noted in the original opinion that appellant’s two companions, in his flight, were the Johnsons. Among the entries in said day book were the following:

“Spheres got 10% whisky; Briggs got 8 gallon of whisky; Johnson got 2 gallon whisky. * * * First meal, 25 sacks mashed in; second, 26 sacks, 24 mashed in; 2 bushels corn malt, $1.50; 51 sacks meal, at $.60 sack, $30.60; 300 barley malt, $7.40; 8 sacks sugar, $72; * * * whisky 6%—7%—10%=24%. Paid to Johnson $.50—$1.50—$1—$18—$24-$3= $48.”

That the facts show, beyond doubt, the manufacture of spirituous liquor, containing alcohol in excess of 1 per cent, by volume, seems so clear as not to need argument. We do not agree with appellant’s contention regarding the charges discussed. The ease was submitted on the law of circumstantial evidence, and we deem the verdict fully supported by the facts.

The motion for rehearing will be overruled. 
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