
    THIELEPAPE v. STATE.
    (No. 6212.)
    (Court of Criminal Appeals of Texas.
    May 4, 1921.
    Behearing Denied June 8, 1921.)
    1. Criminal law €==>1097(1) — Single statement of .facts accompanying three separate records, etc., objectionable.
    Where defendant was charged with liquor offenses in three indictments, and such three cases, by agreement of counsel for the state and defendant, were tried at the same time before the same jury, three separate charges submitting the law applicable to the cases being given, and three verdicts being returned, while on defendant’s appeal there are in the three separate records only one statement of facts, such procedure is objectionable as hampering the Court of Civil Appeals.
    2. Intoxicating liquors €=>137 — Defendant who used equipment already on premises guilty of having it in possession.
    If defendant moved on premises where there was paraphernalia for the manufacture of intoxicating liquor, and took possession of such paraphernalia and proceeded to use it, he was guilty of having in possession equipment to manufacture intoxicating liquor not for medicinal, etc., purposes, though the equipment was already in existence on the premises when he took charge of them.
    3. Criminal law €=>597(3) — Denial of continuance for absence of witnesses whose testimony would establish no defense not erroneous.
    In a prosecution for having in possession equipment for manufacturing intoxicating liquor not for medicinal, etc., purposes, denial of continuance to procure the testimony of witnesses to the fact that the equipment was on the premises when defendant took possession of them held not erroneous, as such evidence could furnish no defense.
    4.Criminal law €=394 — Illicit liquor equipment admissible, though discovered by officers without search warrant.
    In a prosecution for having in possession equipment for the manufacture of intoxicating liquor not for medicinal, etc., purposes, such equipment was admissible in evidence, though the officers were not armed with a search warrant at the time they discovered and took possession of it.
    
      5t Intoxicating liquors €=233(2) — Testimony that defendant had whisky in possession like that in jugs in his barn admissible.
    In a prosecution for having in possession equipment for the manufacture of intoxicating liquor not for medicinal, etc., purposes, testimony that when defendant was arrested, on returning home from a purported visit to his mother-in-law, a small quantity of whisky was found in his possession, or in the car he was driving, of a similar character to the whisky found in jugs at his barn, was admissible.
    6. Criminal law €=663, 858(3) — Equipment taken from defendant properly allowed to remain in courtroom; jury would have had right to take equipment with them during deliberations.
    In a prosecution for having in possession equipment for the manufacture of intoxicating liquor not for medicinal, etc., purposes, equipment found on defendant’s premises being admissible, the court properly allowed it to remain in the courtroom until the case was concluded; after it had been properly offered in evidence, the jury, had they desired, would have had the right to take the equipment to the jury room for further examination during deliberations.
    7. Criminal law €=404(3) — Jugs found in defendant’s possession admissible to show preparation of container for liquor when made.
    In a prosecution for manufacturing intoxicating liquor, six five-gallon jugs found with other liquor equipment on defendant’s premises would be admissible in evidence as tending to show preparation of a container for the liquor when made.
    8. Criminal law €=404(3) — Jugs found in defendant’s possession admissible on charge of having equipment in possession.
    In a prosecution for having in possession equipment for the manufacture of intoxicating liquor, not for medicinal, etc., purposes, five-gallon jugs found on defendant’s premises when other liquor equipment was discovered by the officers were admissible in evidence as tending to show defendant had been operating the equipment.
    9. Criminal law <©=«451 (I) — Opinion that smoke on defendant’s barn looked like fresh smoke admissible as shorthand rendering of facts.
    In a prosecution for having in possession equipment for the manufacture of intoxicating liquor not for medicinal, etc., purposes, testimony of a witness as to the smoked condition of the back of defendant’s barn, that it looked like fresh smoke, was admissible as a shorthand rendering of the facts.
    On Motion for Rehearing.
    10. Intoxicating liquors <§=236 (19)— Evidence held sufficient to sustain conviction of having illicit equipment in possession.
    In a prosecution for having in possession equipment for the manufacture of intoxicating liquor not for medicinal, etc., purposes, evidence held sufficient to sustain conviction, though the top of a certain kettle enumerated as one of the articles of the equipment and necessary before the equipment could be used to make liquor was not found or accounted for.
    11. Criminal law <§=3449(1) — Question of identity of liquor in bottle and in jugs did not involve expert testimony.
    In a prosecution for having in possession equipment for the manufacture of intoxicating liquor not for medicinal, etc., purposes, testimony that liquor in a bottle found in defendant’s car was of the same kind as that in jugs in his barn did not involve any question of expert testimony.
    Appeal from District Court, Parker County; E. O. McKinsey, Judge.
    Robert Thielepape was convicted of having in possession equipment for the manufacture of intoxicating liquor not for medicinal or other lawful purposes, and he appeals.
    Judgment affirmed.
    Baskin, Dodge & Bishop and Sam S. Beene, all of Eort Worth, for appellant.
    R. H. Hamilton, Asst. Atty. Gen., for the State.
   HAWKINS, J.

It appears from the records before us that appellant was charged in three indictments with, (a) being in possession of equipment for the purpose of manufacturing intoxicating liquor; (b) with the manufacture of the same; (e) with being in possession of intoxicating liquor in violation of the law. These three cases, by agreement of counsel representing the state and the defendant, were tried at the same time before the same jury; three separate charges submitted .the law applicable to the cases, and three verdicts were returned. This is an unusual method of disposing of felony cases in the trial court. We find in the three separate records only one statement of facts. This is objectionable, and hampers this court seriously in the discharge of its duties; it is a practice which attorneys may fall into that the court cannot countenance. We will consider the statement of facts in this instance, but wish to give proper warning that a statement of facts hereafter must accompany the record in each case regardless of [ tire agreement of defendant and counsel for the state.

The conviction in the case now under consideration was under an indictment charging that appellant had in his possession equipment for the manufacture of intoxicating liquor, not for medicinal, sacramental, mechanical, or scientific purposes. The equipment is described in the indictment to be one kettle, one worm, and trough, one funnel, ten barrels, and one furnace. Appellant was convicted and his punishment assessed at confinement in the penitentiary for one year.

The issues presented by appellant in his motion to quash the indictment have all been decided adversely to his contention in Ex parte Gilmore, 228 S. W. 199.

Error is assigned because the court overruled the first application for continuance, based on the absence of witnesses Ed Tack-son, R, A. Moore, and Earl W. Silby. The qualification to the bill shows that on October 14, 1920, this case was set down for trial for October 26th; subpoenas were not requested for these witnesses until October 20th, no excuse for the delay in having process issued appears from the bill. We are inclined to think there was a lack of diligence in securing process. However, if these witnesses had been present and had sworn to all that is claimed they would, and the jury had believed it all to be true, it is not likely any different verdict would have been reached.

The statement of facts discloses that the appellant some time between the 1st and 15th of April, moved upon a small farm, known as the Marti place, and resided there until the 23d of June, when an investigation by the officers resulted in these prosecutions being filed against appellant. Marti, who had formerly lived on this place, moved away in the fall, and between the time he left and appellant’s occupation of the premises two young men had been living on the place., The evidence shows that neither they nor appellant had ever been seen doing any farm work while they were living upon the premises. There were two barns on the place, a small and large one. The mother of appellant’s wife lived in Fort Worth, and it was the practice of appellant and his wife to make frequent trips from their home to the city of Fort Worth ostensibly to visit the mother. These trips were made in a five-passenger Ford car, and once or twice each week. Early in the morning of the 23d of June the sheriff and other officers visited the appellant’s place, he being absent at the time on one of his trips to Fort Worth. In the large barn, under some hay, they discovered three five-gallon jugs, two of them being full of corn whisky, and the other partially filled. There was also discovered at the same time, concealed under the hay, a kettle with a ca-paeity of about thirty gallons. One of the officers, in walking over the hay, stepped in the kettle, and it was discovered in this manner. In the small bam there was a partition. In one side of it there was a furnace and a worm in a trough, the trough being'about 15 feet long made out of 1 by 12 inch lumber, through which there ran two copper tubes or worms. They also found three or four empty five-gallon jugs under the kitchen floor. The furnace described was a large one, being some 6 feet long, and would accommodate the kettle found in the large bam. The furnace was so arranged that a pipe ran from it out at the east or back end of the barn, so the smoke from the furnace would go out near the ground on the east or back side. In the other portion of this small bam were found nine or ten barrels full of mash. In two or three of these barrels the mash had ceased working, had settled down, and was clear, but in the others it was still fermenting. Three sacks of meal were found at the same place the barrels were discovered. The evidence discloses that from six to twelve days are required for this mash to go through fermentation and settle sufficiently to be used in the further process of making whis-ky. One witness testified that his premises joined the Marti place, and that on one occasion he went down there on some business, and in looking for the parties passed the back end of the small bam, and noticed the same to be all smoked up, and observed the pipe coming out near the ground. He testified that the smoke looked to be tolerably fresh. This witness also testified that during the time appellant lived there, he had, on more than one occasion, While in the field plowing, detected an odor coming from the direction of the barn in question, which smelled like bread cooking, and made him hungry. A lady testified that upon one occasion while, appellant was living there she had gone to the place for the purpose of getting blackberries; for some reason they did not get out of their oar; appellant’s wife came out on the gallery, and witness noticed some one come around the small barn and go in the inside, and noticed smoke coming from behind the bam. After the discovery had been made by the officers as hereinabove detailed, appellant was arrested about noon, as he and his wife and brother returned home from Eort Worth. In the car were found three five-gallon jugs, empty, but with the smell of whisky strong about them. Appellant also had with him at this time three sacks of meal and three packages of sugar, being about $2 worth of sugar to the package. Substantially the foregoing is the testimony offered upon the trial, and it will not be undertaken to state it more in detail, unless it should be necessary to do so in discussing some of the bills of exceptions presented.

Appellant claims that if the witness Silby were present, he would testify that he was with appellant at the time the latter moved upon the place and knew there was hay in the large barn at that time and that there were several barrels in the small bam; that he had also seen one Joe Marti, on several occasions during appellant’s absence, go to his barn and take therefrom a suitcase and carry it to his buggy. By the witnesses Tackson and Moore appellant said he could prove that they had aided him in moving to the place and also knew the contents of the barn at the time he moved and saw several barrels filled with slop in the barn. The purpose of this testimony evidently was that it tended to show the equipment for the manufacture of intoxicating liquor was upon the premises at the time appellant took possession thereof. As stated heretofore by us, we cannot see that the testimony of these witnesses could have in any way affected the result of the trial. If a party should move in and' take possession of a furnished house, the furniture would no less be in his possession and under his care and control after he had moved in than if it had been acquired subsequently. If appellant moved upon the premises in question, all of the paraphernalia for the manufacture of intoxicating liquor being upon the premises at the time, yet, if appellant took possession thereof and proceeded to use the equipment, as the evidence in this case indicates that he did, it could furnish no defense to him because the equipment was already in existence on the premises when he took charge of them. We therefore find no error on the part of the court in overruling appellant’s application for continuance. Branch’s Crim. Laws, § 239, and many cases cited; Clowers v. State, 228 S. W. 226.

In his bills of exceptions Nos. 3 and 4 appellant complains of the action of the court, first in not sustaining his motion to have the equipment in question returned to him, and, second, to the introduction of such equipment in evidence, because the officers were not armed with a search warrant at the time they discovered and took possession of the property. We will not discuss this question at length, but regard the case of Rippey v. State, 86 Tex. Cr. R. 539, 219 S. W. 463, as decisive of the matters raised by appellant in these bills, and following that case, we conclude there was no error in the action of the court with reference to this equipment.

Witnesses testified that when defendant was arrested upon returning home a small quantity of whisky was found in his possession, or in the car he was driving, of a similar character to the whisky found in the jugs at the large barn. That is to say, that both were “white com whisky.” Appellant excepted to the court permitting the witnesses to so testify. There was no error in this. The testimony may have been of little weight, but it was not inadmissible.

By other bills appellant assigns error in permitting the equipment found upon the premises to be brought into the court and exhibited to the jury and permitting it to remain in the courtroom during the arguments, and until the jury retired. The state had a right to produce before the jury the equipment discovered upon the premises of appellant and not depend upon a description thereof by a witness who had seen it. The various articles constituting the equipment being proper evidence in the case, it is proper for the court to let them remain in the courtroom until the case was concluded; and after they had been properly offered in evidence, the jury, if they had desired, would have had the right to take them to the jury room for their further examination during deliberation upon the case.

Appellant complains because the court permitted to be exhibited before the jury six five-gallon jugs, which had been found at the time the other equipment was discovered, because it was no part of the equipment described in the indictment. As stated in the beginning of this opinion, appellant was tried upon three charges at once. Upon the charge of manufacturing intoxicating liquor there is no question but the introduction of these jugs in evidence would have been permissible, as tending to show preparation of a container for the liquor when made. No charge was asked limiting this evidence to any particular case, or any particular charge. We do not believe the court would have been authorized in giving such a charge had it been requested. If the state had been able to show by an eyewitness that appellant had been operating the equipment in question in the manufacture of intoxicating liquor, it certainly would have had a right to do so; on the charge for having equipment in his possession, it likewise had a right to offer any legitimate evidence as a circumstance tending to prove the same thing.

Appellant also reserved a bill of exceptions because the state was permitted, over his objection, to prove by one. witness the smoked condition of the back side of the small barn, and who, in connection with his testimony, said it “looked like fresh smoke,” on the ground that the same was a conclusion of the witness, and not a statement of fact. It would be almost impossible for a witness to so describe the appearance of a smoked wall as to enable a jury to draw a conclusion as to whether it was fresh smoke or otherwise, and we believe this explanation from the witness that it “looked like fresh smoke” comes within the rule of a shorthand rendering of the facts, and was permissible under the circumstances. Branch’s Anno. P. O. p. 73, § 132.

We find no errors in the record, and the judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

This case is before us upon appellant’s motion for rehearing. He urges that we were in error in holding the evidence sufficient because of the fact that the top to a certain kettle which is enumerated as one of the articles of the equipment for making intoxicating liquor, which was found in appellant’s possession by the officers, was not found or accounted for. It was stated by a gentleman who examined the equipment in the, presence of the jury that the top of the kettle would be necessary in order to make liquor with said equipment. Various parts of said equipment were apparently not in actual use on the day that the officers searched the premises and found same. There was such quantity of affirmative evidence satisfactorily establishing the fact that the manufacture of liquor was being rather extensively carried on on the premises in appellant’s possession, that we would not feel inclined to hold said evidence insufficient because the officers did not find and take into their possession the top of the kettle which could easily have been overlooked by them, they not being experts and not knowing the importance that the top of said kettle might play in making the contraband article.

The questions raised in said motion relative to the conflict between the Dean Law (Acts 36th Leg. [2d Called Sess.] c.' 78) and the Volstead Act- (41 Stat. 305) will not be here discussed because they have been'fully settled against appellant in other decisions of this court.

We did not dispose in the original opinion of appellant’s application for continuance on account of the absence of witnesses Tackson, Moore, and Silby, on the ground of insufficient diligence to procure their presence, but upon the proposition that the testimony alleged to be expected from said witnesses did not appear to us to be such as could have materially affected the result of the trial.

That the liquor found in a bottle in the car of appellant was of the same kind as that in the jugs in his barn was material matter such as could be testified to by persons having opportunity to make the comparison. We do not understand that ability to testify to such fact called for any question of expert testimony, and believing that we correctly disposed of the case upon the original hearing, appellant’s motion for rehearing is overruled. 
      <§=?Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
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