
    EVANS v. STATE.
    (No. 6970.)
    (Court of Criminal Appeals of Texas.
    May 10, 1922.)
    1. Intoxicating liquors <&wkey;!32 — Dean Law held not in conflict with Volstead Act.
    As to tbe offense of unlawful manufacture of intoxicating liquor, the Dean Law (Verapn’s Ann. Pen. Code Supp. 1922, art. 588½ et seq.) is not inconsistent with the Volstead Act.
    2. Intoxicating liquors <&wkey;l32 — Dean Law held not repealed by subsequent legislation.
    As to the offense of unlawful manufacture of intoxicating liquor, the Dean Law (Vernon’s Ann. Pen. Code Supp. 1922, art. 588½ et seq.) was not repealed by subsequent legislation.
    3. Intoxicating liquors &wkey;>224 — Burden is on defendant to show case is within statutory exemption.
    In a prosecution under the Dean Law (Vernon’s Ann. Pen. Code' Supp. 1922, art. 588¼ et seq.) for the unlawful manufacture of intoxicating liquor, when the evidence shows that accused manufactured intoxicating liquor, the burden is upon him to show that such manufacture came within the statutory exemption.
    4. Criminal law <&wkey;>854(7) — Temporary absence of juror held not reversible error.
    Where a juror, who was ill, went into a toilet which was 12 or 15 feet from the jury box, to take medicine, and, on being discovered' was brought back into the jury box, and the questions asked in Ms absence were repeated to the witness, such action was not ground for reversal where the juror testified that he was alone, and spoke to no one while in the toilet.
    Appeal from District Court, Harrison County; P. O. Beard, Judge.
    John Evans was convicted of unlawfully manufacturing intoxicating liquors, and appeals.
    Affirmed.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Harrison county of the offense of unlawfully manufacturing intoxicating liquor, and his punishment fixed at confinement in the penitentiary for three years.

The record is before us devoid of any hill of exceptions. In his motion for new trial appellant attempts to raise the question of the conflict of the Dean Law (Vernon’s Ann. Pen. Code Supp. 1922, art. 588¼ et seq.) with the Volstead Act (41 Stat. 305). If profterly before us this contention would have to be decided against appellant in accordance with the case of Ex parte Gilmore, 88 Tex. Cr. R. 529, 228 S. W. 199.

Appellant also asserts in said motion that his conviction is invalid upon the ground that the law which he is charged -with violating has been repealed. We held contrary to this view in Ex parte Mitchum (Tex. Cr. App.) 237 S. W. 936.

In said motion appellant also complains because of the fact that the trial court instructed the jury that the burden was on him to show himself to be within the exceptions to the Dean Law. This contention also was*Settled against appellant in the case of Robert v. State (Tex. Cr. App.) 234 S. W. 89.

We have carefully examined the statement of facts which seems entirely to support the verdict of the jury. Appellant was found in the act of manufacturing liquor, the intoxicating character of which was proven without dispute.

Effort was made in appellant’s motion for new trial to show misconduct on the part of the. jury in that they separated during the trial. It was shown that at a distance of 12 or 15 feet from the jury box was a door in the courtroom which opened into a toilet, and that during the trial, and at a time when the attention of the officers seemed to.be directed elsewhere, one of the jurors, who had been ill, and was not very well at the time, stepped into the toilet for the purpose of taking some medicine. One or two ¡questions were asked of a witness before the absence of this juror was discovered. He was immediately brought back into the jury box, and the questions that had been asked in his absence were repeated to the witness. The juror himself was placed upon the stand on the hearing of the facts when the motion for new trial was presented, and testified that he was alone in the toilet, and saw and spoke to no one while in there'. These facts, if indeed it may be claimed that the removal of a juror 12 or 15 feet from the body of the jury would constitute a separation at all, would seem to entirely meet the burden placed upon the state in eases where this is an issue, and to fully show no injury resulting from the temporary absence of the juror.

Eindipg no error in the record, the judgment of the trial court will be affirmed. 
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     