
    STEVENS v. STATE.
    (No. 8766.)
    (Court of Criminal Appeals of Texas.
    May 13, 1925.
    Rehearing Denied Oct. 7, 1925.)
    1. Criminal law <&wkey;>4l7(2) — Testimony heid not inadmissible as referring to transaction in absence of defendant.
    In prosecution for manufacturing intoxicating liquor, evidence that, while witnesses were at house of defendant’s father some distance from defendant’s place, a little girl ran to defendant’s house, and immediately defendant went hurriedly from Ms house to barn and emptied jar of liquid on ground, held not objectionable as being transaction occurring in absence of defendant.
    2. Criminal law &wkey;>459 — Admission of answer that contents of jar was either whisky or' mash, after witness stated he did not know, held not error.
    ' In prosecution for manufacturing intoxicating liquor, admission of answer of witness that “he really could not tell -what was in jar, either whisky or mash,” held not error.
    3. Intoxicating liquors <&wkey;233(2) — Testimony of sheriff, showing physical condition of premises, where offense was committed, proper.
    In prosecution for manufacturing intoxicating liquor, testimony of sheriff that he had found corn and broken fruit jars on the premises, where offense was alleged to have been committed, was admissible.
    4. Criminal law &wkey;>35l (4) — Evidence of conversation, relative to shooting of witness in altercation with defendant during attempted arrest, admissible.
    In prosecution for manufacturing intoxicating liquor, it was.proper to allow witness to testify as to conversation between witness and defendant, relative to the shooting of witness during an altercation, arising out of an attempted arrest.
    5. Intoxicating liquors <&wkey;233(2) — Testimony explanatory of physical facts at scene of alleged offense admissible:
    In prosecution for manufacturing intoxicating liquor, evidence that witness had seen defendant and companion run from defendant’s house to barn, and that defendant came out with jar of liquid and poured it on ground, and his companion came out with worm or coil which he threw in the bushes, witness later securing the coil or worm, 'held admissible.
    6. Criminal law <&wkey;404(4) — Manufacturing equipment, found on premises at time of arrest, properly admitted.
    In prosecution for manufacturing intoxicating liquor, it was proper to permit the state to offer in evidence a can or container and coil or tube identified by witnesses as having been found in defendant’s field.
    7. Criminal law <&wkey;339 — Testimony, identifying coil found in field with one in possession of defendant’s companion when arrested, was proper.
    In prosecution for manufacturing intoxicating liquor, testimony that coil identified, by sheriff as having been found in field was in witness’ judgment the same coil that defendant’s companion had, when arrested, was properly admitted.
    8. Criminal law &wkey;>472 — Testimony to show that liquor could he manufactured with articles found on premises admissible.
    In prosecution for manufacturing intoxicating liquor, evidence that whisky could be manufactured with articles found on premises after qualification of witness was proper.
    On Motion for Rehearing.
    9. Jury <&wkey;97(3) — Members of Ku KIux Klan not disqualified for jury service.
    In prosecution for manufacturing intoxicating liquor, where extra jurymen summoned were members of Ku Klux Klan, and it was shown that deputy and sheriff summoning the jurymen were Klan members, and that officers of Klan had more than year before offered reward for conviction of bootleggers, reward being withdrawn almost immediately, 'held not sufficient to disqualify jurymen summoned.
    Commissioners’ Decision.
    Appeal from District Court, Milam County ; John Watson, Judge.
    Yvesley Stevens was convicted of manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    Chambers, Wallace & Gillis, of Cameron, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

Appellant was convicted in the district court of Milam county of manufacturing intoxicating liquor, and his punishment assessed at confinement in the penitentiary for two years.

By bill of exception No. 2, appellant complains of the action of the court in permitting the witness Eittle to testify as to what was done at Bob Stevens’ house by any of the parties during the absence of the defendant. The court qualifies this bill by saying that the Bob Stevens referred to was the father of the defendant, and that the defendant lived across the field or pasture about 250 yards from Bob Stevens in another house, and that immediately after the little girl in question ran in defendant’s house, the defendant came hurriedly out of the house and ran to the barn and came out, and that defendant began pouring some liquid out of a jar on the ground. Under the court’s explanation, this' testimony was clearly admissible.

Bill of exception No. 3 complains of the court’s- action in permitting the witness Little to testify concerning the following matter: That he had seen the. defendant come out of the house with a jar, and was pouring out the contents of the jar, when the witness passed him. The following question was asked: “And did you know what was in the jar?” and he replied, “No, sir; 1 really could not tell you what was in the jar; either whisky or mash.” The objection being that the party’s answer • that it was either whisky or mash should not have been permitted, as the witness had stated that he did not know what was in the jar. This objection is strongly hypercritical, and the bill shows no error.

Bill of exception No. 4 complains of the court’s action in permitting Sheriff Rogers to testify that he searched the premises, went into the barn, and that when he went into the bam there were 4 or 5 bushels of corn there and 40 or 50 fruit jars broken, and they were broken up and the tops fell over, and that he took the empty jars and 2 or 3 that were not broken and picked up the whisky that was in the tops of the fruit jars and in some of the bottoms and poured some in the fruit jars and brought it to town. This testimony was clearly admissible as showing the physical condition of the premises where the offense was alleged to have been committed.

Bill of exception No. 5 complains of tlie court’s action in permitting tlie witness Little to testify as to a conversation between the witness and the appellant, relative to the shooting of the witness in an altercation between him and the appellant; the objection being that the appellant was under arrest at the time of this occurrence. The court’s qualification to this bill shows clearly that the appellant was not under arrest, but that the altercation grew out of the attempt of the witness Little to arrest the appellant, and was admissible under all the authorities in this state. Evidence of flight and evidence of resisting arrest have always been held to bfe admissible.

Bill of exception No. 6 complains of the court’s action in permitting the witness Little to testify that, after he had gone with Sheriff Rogers out to Bob Stevens’, and had followed a little girl from Stevens’ premises to the premises of the defendant, and had followed Jim Brashear from the barn of the defendant, when he ran away, the witness saw Brashear with a coil or worm in his hand, and that he threw it over in some bushes. This bill is qualified with the statement that the witness testified that he saw defendant and Brashear run out of the back door of the house occupied by them, immediately upon the little girl entering, and they then ran to a barn or tin house together and defendant came out with a jar of liquid 'and poured it on the ground, and that Brashear came out of the barn with a worm or coil in his hands at the time or shortly after defendant, and Brashear ran and witness outran him, and witness secured the coil or worm Brashear had when he left the barn or house. This testimony was clearly admissible as explanatory of the physical facts found at the ■scene where the offense is alleged to have been committed.

By bill of exception No. 7, appellant complains of the court’s action in permitting the state to offer in evidence the can or container and coil or tube identified by the sheriff and another witness as having been found in the field. This bill shows that these articles were found on defendant’s premises as testified to by the witnesses at the time of the arrest and search of said premises and were clearly admissible.

By bill of exception No. 8, appellant complains of the court’s action in permitting witness Little to testify that the coil identified by Sheriff Rogers, as having been found in the field, was in his judgment the same coil that Brashear had when he was arrested. The court qualifies this bill by stating that there was only one coil found on the premises, and the witness Little gives his reason for identifying the coil. The objection goes rather to the weight than to the admissibility of the evidence, and, under the explanation of the court, we cannot do otherwise than hold that no error is shown in its admission.

Bill of exception No. 9 complains of the court’s action in permitting the witness Harris to testify as to how liquor is manufactured. The court qualifies this bill by saying that the witness was offered to prove that whisky could be manufactured with the articles found on the premises, and that upon objection as to qualification he was permitted to answer as to experience, etc., along said line, and that -the charge in the indictment was unlawful manufacture of intoxicating liquor, and the case was submitted under a; charge on circumstantial evidence.

We see no error in the trial court’s action in permitting this testimony.

The court has given a full and a fair charge on the issues presented by the evidence, and, 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 of Criminal Appeals, and approved by the court.

On Motion for Rehearing.

BERRY, J.

This case was affirmed at a former term of this court, and is now before us on appellant’s motion for rehearing.

Appellant seriously insists that we were in error in failing to sustain his first proposition in his brief to the effect- that the trial court erroneously overruled his challenge to the array of talesmen. The motion to challenge the array shows that after. the jury for the week had been drawn, and after the state had made its challenges, and the defendant had made his challenges, that five jurors had been accepted by the state and defendant, that the court thereupon directed the sheriff to summon 20 talesmen to report at 1:30 o’clock on the day of the trial, and that '20 men so summoned were in court at that time and were sworn and tested. One of them was excused for cause, and that of the remaining 19 talesmen 13 stated that they were members, or had been members, of the Ku Klux Klan, and 6 members stated that they were not members of the said Klan that thereupon the defendant asked permission from the court to file a motion to quash the panel of talesmen so summoned by the sheriff, and, receiving permission from the court to do. so, appellant filed his motion, setting up as a reason why they should be discharged; that the 'Ku Klux Klan and its members were taking active steps to- secure conviction of all-persons accused of violating the prohibition law; and that the sheriff and his deputies were members of the Ku Klux Klan and in sympathy with its activities, and that in summoning the said talesmen the sheriff and his deputies had summoned men known to be members of the Ku Klux Klan, and had not summoned citizens without reference to such membership; and that appellant was being forced to trial and deprived of his constitutional right to a trial by a fair and impartial jury. On the issue thus made, evidence was introduced. This evidence shows that the Cyclops of the Klan in Milam county had. stated that the Klan was active in the prosecution of people charged with violating the liquor law, and stated that they were going to continue in that regard. The Cyclops was called as a witness, and testified that the Klan had not been any more actively engaged in the enforcement of the liquor law than any other good citizen; that they had not published in their literature or otherwise that they were going to do all they could to secure convictions of persons charged with violations of the liquor law any more especially than any other law. Said Cyclops also testified that the Klan had issued a circular at one time offering a reward of $25 to any officer in the county for the arrest and conviction of bootleggers, but that said reward had been withdrawn because it was believed that it would disqualify all members of the Klan from jury service; that this reward was offered some time in January, 1923.

Testimony from the district clerk shows that the population of Milam county is 40,000 or 50,000 people, and that there are probably 2,000 or 2,500 jurors in the county. The witness Kennedy, one of the deputies who summoned the jurors, testified that he was a member of the Klan, but that nobody gave him any list to go out and summon the talesmen in question, and that he did not have any list; that he summoned 14 of the talesmen in question and Mr. Rogers summoned 6. Rogers, the sheriff, testified that he was a member of the Klan, but also testified that when he took the oath to summon good and sober men he got the best men he could get, and that he got people whom he believed would render a fair and impartial verdict, and that was his only purpose in summoning the jurors in this case; that he had no intention of summoning Ku Klux Klan members any more than any other good citizen; that he just tried to get good men. Similar testimony was given by Deputy Sheriff Kennedy. All of the talesmen were asked the question, “If they knew of any reason why by virtue of their, belonging to the Klan, or not belonging to the Klan, they could not render a fair and impartial verdict in the ease?” and the talesmen all answered “No.” Those who were members of the Klan testified on their voir dire that the fact that they were members would cause them to have no bias in favor of the prosecution in the case. Each of the talesmen testified that they could try the ease according to the law and evidence, and that their membership in the Klan would not in anywise influence them. The only serious question raised by this motion is that pertaining to the reward by the Klan. It seems this reward was offered in January, 1923, and this ease was not tried until the January term of 1924. It also appears from the record that the reward was withdrawn in a very few days after it was offered. There is nothing in this record to show that any of the talesmen summoned in this case were members of the Ku Klux Klan in January, 1923, at the time the reward was offered, and the record is also silent as to how many members or what members knew of, indorsed or ratified the offering of the reward at the time it was done, and the record is entirely silent as to any member of the jury who tried this case having any connection with the offer of the reward in January, 1923.

Therefore, we have a simple question as to whether or not membership in the Ku Klux Klan would of itself disqualify a person from serving 'on the jury in the trial of a liquor case. Appellant presents a very strong and ingenious argument on this question, cites many illustrations of alleged outrages on the part of this organization which he contends disqualifies the membership from jury service. We regret that we cannot agree with appellant’s contention in this respect. We think that the question of a man’s qualifications for jury service is one of fact with reference to the particular individual. Belonging to this order might or might not disqualify any individual. It would all depend upon the peculiar facts surrounding the individual juror. In this ease, we find the record entirely silent as to any disqualifying reason touching any particular talesmen called upon for jury service, unless it should be held that membership in the Ku Klux Klan alone is sufficient to disqualify. This we cannot hold sufficient.

Believing, therefore, that the case was correctly decided in the original opinion, it is ordered that the appellant’s motion for rehearing be in all things overruled. 
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