
    SCHMIDT v. STATE.
    (No. 9008.)
    (Court of Criminal Appeals of Texas.
    May 6, 1925.
    Rehearing Denied June 17, 1925.)
    I.Criminal law &wkey;>720 ( 10) — Argument that defendant imposing on public as selling mis-branded bootleg whisky held not an unfair inference.
    Argument of siate’p counsel, in prosecution for manufacturing intoxicating liquor, that defendant was imposing on public by selling mis-branded bootleg whisky, held not an unfair inference from things found in defendant’s house by officer.
    2. Indictment and information ©=If(i) — That indictment did not recite in which of several district courts in county it was returned not ground for motion to quash.
    That there is more than one district court in county of prosecution, and that indictment did not recite into which district court it was returned, was not sufficient ground for motion to quash, as Acts 1903, e. 7, leaves designation of indictment subject to general rules governing similar proceedings in other district courts of state.
    3. Criminal law <&wkey;763, 764(8) — Instruction held not erroneous as being on weight of evidence.
    Where defendant, under direction of officers searching his premises, adjusted a connected still so that whisky ran out of coil, instruction that, if defendant manufactured whisky at instance of officers, he would not be guilty, and that to convict him they must believe that defendant voluntarily manufactured whisky, was not objectionable as being on weight of evidence.
    4. Criminal law ©=3369(6) — Proof of purchase of liquor shortly before prosecution for manufacturing held competent.
    In prosecution fpr manufacturing intoxicating liquor, proof of sale, made by defendant shortly before search of his premises was made and connected' still found, was competent as tending to show that defendant was proprietor and manufacturer.
    5. Criminal law ©=3633(1) — Bringing of still found in defendant’s barn into courtroom held not error, where identified as defendant’s.
    In prosecution for manufacturing intoxicating liquor, bringing of still found in appellant’s barn into courtroom, and referring to it during trial, was not error, where sufficiently identified and shown to be defendant’s.
    6. Criminal law <&wkey;364(4) — Statements by defendant at time connected still found on premises properly admitted as part of res gestee.
    Statements made by defendant at time connected still was found on his premises, as to its ownership and kind of whisky he was making, was part of transaction and properly admitted within rule of res gestee.
    7. Criminal law <&wkey;507(l) — Officers directing defendant to operate connected still held not accomplices.
    Officers, who, on finding a connected still on defendant’s premises with mash in it and fire burning, directed defendant to adjust it so as to cause whisky to run out of coil, were not accomplices.
    On Motion for Rehearing.
    8. Criminal law <&wkey;l 168(2) — Failure to elect as to liquor manufactured before and- after search held immaterial, where jury instructed not to convict as to liquor manufactured under officers’ direction.
    Where officers, finding connected still on defendant’s premises, directed him. to operate it, failure of state to elect to prosecute either for manufacture of whisky found on premises, •or that manufactured under officers’ direction, •was immaterial, where court instructed jury that they could not convict as to'liquor manufactured under direction of officers.
    Appeal from District Court, Jefferson County; Geo. C. O’Brien, Judge.
    William Schmidt was convicted of manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    See, also, 97 Tex. Cr. R. 196, 260 S. W. 848.
    Howth, Adams, O’Fiel & Hart and John T. Hitching, all of Beaumont, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BATTIMORE, J.

Appellant was convicted in the district court of Jefferson county of manufacturing intoxicating liquor, and his punishment fixed at three years in the penitentiary.

Officers went to appellant’s house, and in an outhouse, a short distance from the dwelling, found a connected still with mash, coil, a fire burning under the still, and a large number of demijohns, empty bottles, whisky labels of various kinds, stamps, etc. The •bottom of the still was coated with soot. In a demijohn, in the residence was found some whisky. Soon after the officers got there, and under their direction, appellant turned up the fire and screwed the top of the still down a little, and shortly whisky began to run out of the coil, and continued until they had caught a quart or more. No one lived in the house but appellant. Statements made by him, in effect that this was his apparatus, were in evidence. A witness swore that shortly before this he was sent to ap--pellant by other parties, for whisky, gave appellant $1.50, and was told by him to look under a bucket, which he did, and found a half-pint bottle of liquor and took it to the parties who sent him. Another witness testified to being in the house of appellant shortly before this and hearing the ¡noise of the gasoline burner in appellant’s barn, and inquired of appellant what was making the noise, and was told by him that it was the refinery; witness said the noise he heard was that found by him later to have been made by fire of the gasoline stove on which the still was when the officers found it. Appellant’s statement, to the effect that he did not see why he should be arrested when he was making good clean whisky, was also in evidence.

We briefly ¡notice the bills of exception in their order. The argument of state’s attorney that appellant whs imposing upon the public by selling misbranded bootleg whisky was not an unfair inference from the things that were found in his house by the officers.

That there was more than one district court in the county of the prosecution, and that the indictment did not recite into which district court same was returned, was no sufficient ground for a motion to quash. The use of the words “except in criminal cases,” in the act creating the Sixtieth district court of Jefferson county (Acts 1903, p. 9), goes no further than to leave the designation of indictments returned into said Sixtieth district court and the Fifty-Eighth district court of said county subject to the general rules governing similar proceedings in other district courts of this state, and therefore amenable to the rule laid down by this court in Sargent v. State, 35 Tex. Cr. R. 325, 33 S. W. 364.

Nor do we think it error to overrule' appellant’s motion to quash the jury panel based on lengthy objections to the manner in which the jury wheél was filled in February, 1924. Substantially the same matter has been recently discussed by us in several opinions holding adversely to the contentions now made.

The officers saw no whisky actually coming from the coil when they got to appellant’s premises, but under their directions to him, as above stated, he turned up the fire and screwed down the top, and shortly afterward whisky began to run out of the coil. In this condition of the record the learned trial judge told the jury that if appellant manufactured whisky at the compulsion or instance of the officers, he would not be guilty, and that before they could convict him in this case they must believe beyond a reasonable doubt that either on August 12th, or about that time, appellant voluntarily and óf his own accord unlawfully manufactured whisky. Appellant’s bill of exceptions No. 5, complaining of this as being on the weight of the evidence, seems without mferit.

In this connection, we do not think it incumbent on the court below to give the special charges referred to in bills of exception Nos. 6, 7, and 8, in view of the charge just referred to, which seems to obviate the necessity for said special charges.

Testimony of witness Burnett that he was sent to appellant’s house to buy liquor, and when he made his errand known to appellant, was shown a bucket under which he found a half-pint bottle of liquor, for which he gave appellant $1.50, and which he took to the men who sent him, seems not open to appellant’s objection. Proof of sales by the accused reasonably near the time of the prosecution for manufacturing liquor individuate him as the proprietor and manufacturer and furnish substantial aid in making out the case when he is not found engaged in the actual manufacture.

We think the court’s charge sufficiently guarded appellant from any danger of conviction for the making of whisky at the instance or under the direction of the officers' after they found the equipment at his house, and we see nothing in appellant’s exception to the charge of the court as given, the ground of the exception apparently being ''that the state should have been required to elect between the transaction that took place while the officers were there and some other time.

The bringing of the still found in appellant’s barn into the. courtroom, where it could be seen by the jury, and reference to it during the trial, presents no error. The still jvas sufficiently identified and shown to be that of appellant. There is nothing in bill of exceptions No. 14 calling for any discussion.

Bills of exception Nos. 15, 16, 17, and 19 relate to statements and convefsatioins of appellant concerning the still, its ownership, the manufacture of the liquor, etc. We deem these matters within the rule of res gestae. As above stated, the still was connected, the mash was in it, the fire was burning, and what appellant said as to the kind of whisky he was making, etc., was part of the transaction. What he said after making bond relative to the coil in question was subject to.no objection known to us.

The refusal of the court to instruct that the officers were accomplices because they directed appellant to turn the fire up and the top down, and when done whisky ran out of the coil, was proper. Said officers were evidently desirous of seeing the effect of these two simple operations, either or both of which could be done in a moment and could have been caused by reverse acts of appellant when the officers came in sight of the premises. They were well within their duty in discovering evidence. They did not seek to convict appellant for the whisky made after the officers arrived, but the contrary appears. They were not accomplices.

Binding no. error in the record, the judgment will be affirmed.

On Motion for Rehearing.

Appellant makes complaint of some slight misstatement in our original opinion which is not material to the issue and will not be discussed. We have again examined the record in view of appellant’s claim that the state should have been required to elect to prosecute either for the manufacture of whisky claimed to have been found in appellant’s house by the officers, or that which was manufactured by him after they arrived. In view of the fact that the court so instructed the jury that they could not convict appellant, under the facts of this case, for the liquor that was manufactured by him under the direction of the officers after they reached his house, we think it wholly immaterial that the state did not comply with appellant’s request in this regard. The confession of appellant, which was admitted in evidence, was material as tending to show him guilty of the manufacture of intoxicating liquor. Whether • this related to the liquor found in appellant’s house was for the jury. The charge of the court was ample and full in instructing the jury that they could not convict for the liquor that was made under the direction of the officers. It also instructed the jury specifically that though appellant might intend to manufacture’liquor and prepare to do so, but if he had been interrupted before any liquor was manufactured, he could not be held guilty of such manufacture. We do not think the charge subject to any of the criticisms made in appellant’s motion. The motion is principally an argument on matters already carefully examined and decided by us, and we do not deem it necessary to restate or discuss matters which have been fully considered by us.

The motion for rehearing will be overruled. 
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