
    EMERY v. STATE.
    (No. 7523.)
    (Court of Criminal Appeals of Texas.
    Oct. 10, 1923.)
    1. Criminal law <&wkey;453 — Witness’ opinion as to identity of accused held inadmissible.
    In a prosecution for manufacturing intoxicating liquor, testimony by the sheriff that he believed accused and another were persons whom he saw running from the still as he approached it held improperly admitted where he based his belief purely on peculiar circumstances which were in evidence.
    2. Criminal law <§=»453 — Where testimony as to identity admissible stated.
    If a witness has prior acquaintance with a party, he mdy state that in his best judgment it was the party seen by him on a certain occasion, or, if he has no prior acquaintance, but sees a party not then kno.wn by him do a certain act, he may testify that he subsequently recognizes the party as the same person.
    3. Intoxicating liquors &wkey;>239(2) — Instruction as to necessity of proof of actual manufacture held improperly denied.
    Where officer who found a still testified that certain essential parts were missing, and where containers about the still did not indicate that they had ever contained whisky, an instruction requiring proof that accused had actually manufactured liquor, and not merely attempted or intended to, and an instruction that possession of equipment for manufacture was not an offense, held improperly denied.
    4. Criminal law <&wkey;720(I) — Argument of counsel held improper.
    In a prosecution for liquor violations, argument of the district attorney, “If you believe this man is guilty as strong as Mr. P. and Mr. M. D. (officers who had testified) believe him guilty, then if you do not convict him you will lose your self-respect,” held improper and prejudicial.
    
      5. Criminal law <&wkey;724(2) — Unsupported characterization of defendant by counsel held improper.
    In a prosecution for manufacturing intoxicating liquor, an argument of the district attorney that appellant “is an old wildcatter, an old distiller,” etc., held improper when unauthorized by the facts in the record.
    Appeal from District Court, Morris County; R. T. Wilkinson, Judge.
    Pleas Emery was convicted of manufacturing intoxicating liquor, and he appeals.
    Reversed, and cause remanded.
    French &'Price, of Daingerfield, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction is for the manufacture of intoxicating liquor, with a punishment of one year in the penitentiary.

The officers, in company with others, were searching for whisky stills. Smoke was detected at a point several hundred yards from appellant’s house. Two negroes were seen at this place by some of the party. They were wearing brown caps. Upon discovering the officers they ran away. In a few minutes the officers reached the place. A copper pot with fire under it and mash in it, and a cooling keg were found, and near by two barrels containing mash were discovered. There was no cap on the pot, and no worm was attached, and after diligent search none could be found; no whisky was at or about the place; and,- if any receptacle which appeared ever to have contained whisky was found, no mention is made of it in the record. The proof is that the equipment could not be used for manufacturing whisky without the aid of a “worm,” but that this.was indispensable, and without it whisky could not have been made. The equipment was not on appellant’s land, but a well-defined trail led from it to his residence. The officers found the fresh tracks of two men, apparently made while running, leading from the still to the residence. Two dogs were about the still when the.officers reached the place. Some one at or in the direction of the residence called, and the dogs went in' that direction, and were in a short time seen by the officers in the yard. They belonged to appellant’s children. The negroes were not seen by the officers going towards the house when they disappeared from the still. Some 30 minutes later appellant and another negro (Willard Wright) were seen coming from the direction of the house, traveling at such an angle as would have taken them some one hundred yards from the still had they passed it. They were both wearing brown caps, and the. tracks then made by them corresponded generally with those leading from the still, but no comparison by measurements was made. Appellant denied any knowledge of the still or connection with it. He denied that he and Wright were at the still when the officers discovered it, and supported this contention by other witnesses.

It is urged that the court committed error in permitting witness Daniels to testify that in his judgment the two negroes he saw coming from appellant’s house were the same negroes he saw at the still. It is admitted that the two negroes coming from the direction of the house subsequent to the discovery of the still were appellant and Willard Wright. ' If a witness has prior acquaintance with a party he may state that in his best judgment it was this party seen by him on a certain occasion; or, if he has no former acquaintance, but sees the party not then known by him do a certain act, he may testify that he subsequently recognizes the party as the same person. We understand from the record that Daniels had no former acquaintance with appellant or Wright; that he was some 75 yards from the parties seen by him at the still, and only knew they were negroes wearing brown caps. It is apparent that his subsequent identification of them is based on a process of reasoning from what afterwards occurred. He testified:

“ * * * I will tell this jury that the only reason why I think Willard and ■ Pleas were the negroes I saw at that still is because of the brown caps they were wearing, the similarity of caps, and because of the dogs being there.' I have no other reason at all. Just the circumstance of the 'caps, the circumstance of the dogs, and the circumstance of the similarity of the tracks Willard and Pleas made being like those that led away from the still. That is the reason it is my judgment they were the negroes I saw at the still. I don’t swear they are the ones. I just said I thought so; I thought the two men I saw at that still was Pleas Emery and Willard Wright because of these circumstances.”

The rules permitting • witnesses to give opinions upon questions of identity of persons are liberal (Underhill’s Or. Evidence [3d Ed.] § 108; Wharton’s Crim. Evidence [10th Ed.] § 940), but there are certain limitations beyond which it is not safe to go. The facts appear to bring this case within the rule announced in Clark v. State, 79 Tex. Cr. R. 196, 183 S. W. 437. The identity of appellant was one of the sharply drawn issues. The opinion stated by the witness was nothing more than his deductions from the circumstances in evidence which should properly have been left to be drawn by the jury.

Appellant requested the court to charge in substance that, before he could be found guilty, the jury must find from the evidence beyond a reasonable doubt that he manufactured intoxicating liquor on or about the date alleged, in tide indictment; that it was not enough for the state to prove that he was attempting to manufacture such liquor, hut it must establish that such intoxicating liquor was actually produced and manufactured by him. He also requested an instruction that possession of equipment for the manufacture of intoxicating liquor was not an offense, and if the jury found that he was in’possession of such equipment, they should consider it only upon the issue as to whether he actually manufactured liquor at the time alleged, and that the mere intent and preparation for the manufacture of the same did not constitute the offense charged in the indictment. The special charges were refused and exceptions properly reserved. Ve believe under the peculiar facts of this ease the learned trial judge fell into error in not submitting the charges substantially as requested. At the time of the transaction inquired about it was not an offense under our law to possess equipment for the manufacture of intoxicating liquor. By all the evidence from the state’s witnesses it is shown that the equipment found at the time of the raid was insufficient for the purpose of completing the manufacture because of the absence of the “worm” and no top being upon the still. No whisky was found by the officers and no receptacle which apparently had contained whisky. The state rested its ease upon the theory that, when appellant and his coactor, Wright, were discovered at the still they dismantled it, removing the top and detaching the worm, and secreted them where they could not be found by the officers. The state sought to support this theory by proof of circumstances of more or less cogency, but the issue remained that, if appellant was only in preparation for the manufacture of liquor, or was attempting to manufacture it with an equipment insufficient for the purpose, he would not be guilty of the offense charged. While ordinarily it might not be necessary for the court to embrace in his charge an instruction upon this issue, we are of opinion it should have been given in the instant case and that its omission was injurious to appellant. Hardaway v. State, 90 Tex. Cr. R. 485, 236 S. W. 467; Cramer v. State, 93 Tex. Cr. R. 226, 246 S. W. 380.

Complaint is made of the argument of the district attorney in which he told the jury that—

“If you believe this man is guilty as strong as Mr. Ponder and Mr. Mancie Daniels believe him guilty, then if you do not convict him you will lose your self-respect.”

Mr. Ponder was sheriff of the county, and testified as a witness in the case, as had also Mr. Daniels. In approving the bill certain argument by appellant’s attorney is recited in which he pointed out the insufficiency of the evidence to identify appellant. It was the opinion of the learned trial judge that the argument complained of was in reply to this statement of appellant’s attorney. We have not been able to reach this conclusion from an inspection of the bill, and believe this ar gumont ought not to have been indulged in. It was not a question what the sheriff dr other witnesses might believe about the guilt of appellant, but as to the conclusion reached by the jury from all the evidence.

Complaint is also made of a statement by the district attorney in his argument that appellant “is- an old wildcatter, an old distiller,” etc. We find no facts in the record which would authorize such a conclusion by the attorney representing the state, and believe the argument should not have been indulged in.

Other questions are raised by the record which we deem it unnecessary to discuss, believing the matters complained of present no error, or that they will not likely occur upon another tidal.

For the errors pointed out, the judgment is reversed, and the cause remanded. 
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