
    BALL v. STATE.
    (No. 12289.)
    Court of Criminal Appeals of Texas.
    Feb. 6, 1929.
    
      Perkins & Perkins, of Rusk, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for tke State."
   MORROW, P. J.

Tke conviction is for tke unlawful possession of a still for tke purpose of manufacturing intoxicating liquor; puniskment fixed at confinement in tke penitentiary for a period of four years.

About 10 o’clock in tke daytime tkere was discovered by officers a still in operation and otker equipment for tke manufacture of intoxicating liquor in a pasture belonging to a man named Satterwhite, wkick pasture was in possession of a man named Wilson. Tke still was situated on tke bank of a creek or ravine in a dugout, partly inclosed witk boards and covered witk brush, Upon approaching tke still, tke officers discovered no one present. They heard a voice which they did not recognize as that of • tke appellant, but upon firing a pistol tke appellant came out of tke dugout, or, according to some of tke testimony, came around tke still. His son, a youth about 17 years of age, was in the pasture near tke still. Tke location of tke still and equipment was variously estimated at from three to six miles from tke home of tke appellant where he resided witk his wife and family. After he came out of tke still, tke dugout was entered by tke officers and tke still destroyed. According to tke officers tke. appellant made some criminative declarations calculated to lead to tke conclusion that tke still belonged to him. According to tke wife of tke appellant, he left kis home together witk kis son after breakfast, riding in an automobile. Before leaving, he said that he was going to tke home of Wilson to see about purchasing a milch cow which was needed for tke family.

Wilson testified that before the day upon wkick tke arrest took place he and tke appellant had negotiations witk reference to tke sale of a cow by Wilson to tke appellant, and that tke appellant came to kis house on tke morning in question and indicated that kis purpose was to discuss tke purchase of tke cow. After conversing for some time, Wilson gave tke appellant a description of tke cow and directions for finding her. Leaving their car at tke Wilson home, tke appellant and kis son went into tke pasture for tke purpose of finding and looking at tke cow. Later Wilson learned that tke appellant had been arrested. ' Wilson claimed that he had no knowledge that tkere was a still in tke pasture ; that he had resided upon tke premises but a short time; that he did not know to whom tke still belonged.

The arrest was made in December, 1927. Tke indictment was filed on tke 11th of January, 1928, and tke trial took place in August of that year. A motion for a continuance was made because of tke absence of Horton Ball, son of tke appellant, by whom it was 'expected to prove that he accompanied tke appellant from kis home to that of Wilson in tke Satterwhite pasture; that he was witk tke appellant when tke still was discovered by him, wkick was but a few moments before tke officers appeared and arrested tke apppellant; that tke appellant was not in possession of tke still or equipment and was not connected witk its operation. Tke witness had been subpoenaed upon process issued on tke 17th day of January, 1928, and had left tke home of tke appellant about 10 days before tke trial began because he became offended and angry witk the appellant; that tke appellant was unaware of kis whereabouts, but expected that he would return within a short time. Tke appellant had no' otker witnesses by whom he could prove tke same facts. Tke issuance of additional process for tke absent witness, under tke circumstances stated in tke application, was not necessary.

Tkere was a pleading controverting tke motion for new trial and a reply by appellant. Tke state’s pleading is somewhat contradictory, but on tke whole we understand that tkere was no substantial disagreement between tke two to the effect that tke witness was present at tke January term in answer to tke subpoena; that for some reason tke case was set for tke 16th of July and was passed until tke 6th of August in order to skip tke date of tke primary election on July 28th. Attacked to tke state’s contest are tke affidavits of some witnesses who claim to have seen tke appellant in tke Satterwhite pasture at a date antecedent to that upon wkick tke arrest was made. It seems to be tke position of tke state that, when tke case was called on tke 6th of August, a motion for a continuance was made and overruled on that day, and that diligence would require tke issuance of process immediately. Tke motion, as it appears in tke record, bears date tke 7th of August and tke file mark on tke 8tk of that month, which seems to have been tke day tke case was tried. Accepting as true tke averments in tke motion touching tke absence of tke witness and his unknown whereabouts, tke law would not demand that tke appellant issue process without having some information touching tke whereabouts of tke absent witness.

Tke testimony of tke witnesses for both tke state and tke appellant put the witness in possession of knowledge of facts touching tke cause of tke appellant’s presence at tke still and kis connection therewith. Tke appellant insists that tke evidence adduced, particularly that of kis wife and that of Wilson, presented circumstances which should have impelled tke court to have instructed tke jury in substance in accord witk tke appellant’s theory, namely, that if tke appellant’s presence in the pasture and at the place where the still was located in pursuance of his effort to find a cow which he desired to see with the view of purchasing, and that he accidentally came upon the still and was not in possession of it, he should be acquitted. Several special charges endeavoring to have such issue submitted to the jury, as well as exceptions to the main charge, were presented to the court, and its action in refusing the special charges or to amend the main charge is properly preserved and brought forward for review. The court presented no defensive theory and refused the request to instruct that if the appellant was not in possession of the still and equipment, his mere presence there would not render him guilty. The principle that the court should have embraced the appellant’s defensive theory in a proper case is well supported by the precedents.

Both of the matters mentioned above, namely, the refusal to continue and the omissions in the charge, were made the subject of bills of exceptions and motion for new trial, and it is believed that a new trial should have been accorded.

The judgment is reversed, and the cause remanded.  