
    BROZ v. STATE.
    (No. 6919.)
    (Court of Criminal Appeals of Texas.
    June 21, 1922.
    Rehearing Denied Dec. 20, 1922.)
    1. Criminal law <&wkey;775(2)— Charge on alibi properly refused.
    Where accused’s home was found to contain a complete liquor manufacturing outfit, with barrels of mash and several gallons of the manufactured products, and accused was met by the officers a short distance from the house, held, that failure to charge on alibi was not error.
    2. Intoxicating liquors &wkey;>233(l) — Testimony that road to accused’s home showed recent travel held admissible.
    In prosecution for manufacturing liquor, testimony that the private road leading to accused’s house from the public road showed much evidence of recent travel was admissible for what it was worth as a circumstance supporting the claim of the state that illicit' liquor was being manufactured and sold at his house, as was also testimony that automobiles and other vehicles frequently passed the house of witness going toward accused’s house.
    3. Intoxicating liquors <&wkey;l32 — Dean Law as applicable to manufacture of liquor held not substantially changed.
    The Dean Law, as applicable to the manufacture of liquor, was not so changed by the amendment thereto in Acts 1st Called SesS. 37th Leg. c. 61 (Vernon’s Ann. Pen. Code Supp. 1922, art. 58814 et seq.), as to amount to a repeal of the former law, and to thereby necessitate reversal of conviction of one manufacturing liquor prior to November 15, 1921.
    On Motion for Rehearing.
    4. Criminal law &wkey;>5l7(4) — Conversation between accused and officers prior to; finding still hei(i admissible.
    Where officers going to search accused's premises under a warrant met him about 300 yards from his house, and at their bidding he got into their automobile, his statements then made that the officers had “got” him for making whisky, and that “it” was in the house, were admissible, under Code Cr. Proc. 1911, art. 810, although made while he was in custody, where after the statements he accompanied the officers to the house where liquor manufacturing outfit, of the location of which the officers had previously had no knowledge, was found; the statutory requirement that the finding of the fruits of crime or instruments of its commission be because of the information gained from accused through his confession being met.
    5. Intoxicating liquors <&wkey;239(I) — Submission of issue of guilt as accomplice or principal not required.
    Where complete liquor manufacturing plant in operation was found in defendant’s house, and he was found only 300 yards away, held, that there was no error in refusing to submit whether his guilt was that of an accomplice or principal.
    ©^oRor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    . Appeal from District Court, Milam County; John Watson, Judge.
    Jim Broz was convicted of manufacturing liquor, and appeals.
    Affirmed.
    Robt. M. Lyles, of Cameron, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Milam county of the offense of manufacturing liquor, and his punishment fixed at one year in the penitentiary. ,

Officers went to appellant’s residence on October 31, 1921, and found a complete still in process of making liquor. There were three barrels of mash. A copper container with a capacity of 12 gallons was on the stove boiling. The worm leading from the top of this container was disconnected, but still hot, and a five-gallon keg of whisky was part of the find, also a quart of the same intoxicant; No one was at the house save the wife of Appellant and two small children. The officers had a search warrant. When they got in about 300 yards of appellant’s house they saw him in the road. They slowed down, and one of the parties spoke to appellant and said, “Get in, Jim.” The officers knew nothing of what they would find at his house. Appellant said, “Well, you have got me.” The conversation following, as detailed by the various officers, differed in some particulars. The officer seated next to appellant in the back seat of the car testified that when appellant said, “Well, you have got me,” witness said, “Why, what are you doing, Jim?” and that appellant replied, “Well, I am a-cooking.” Another officer testified that he asked appellant, “What for?” when the latter said they had him, and that appellant replied to him, “What for? Making whisky.” The party went to appellant’s house, and found therein the outfit, the operation, the product, above mentioned,

Various exceptions to the court’s charge appear. One was for failure to charge on alibi, and a special charge embodying this phase of the law was presented and refused. There seems to us no need for such charge. Five gallons of the manufactured product were found at appellant’s house. Barrels of mash that must have taken time to prepare were also found. A complete manufacturing outfit was there also. The process of manufacture was proceeding. Appellant was within a few minutes’ walk of the scene of operation. It was his house. He was the head of the family. He said, “I am a-cooking,” “You have got me,” “What for? Making whisky.” The court submitted the law of circumstantial evidence. The manufacture of intoxicating liquor is not begun or completed in a moment. That appellant was a short distance from his house when seen by the officers that morning would not suffice to demand an acquittal upon the theory that he was at another and different place when the crime was committed. The fact that he may have been to drive a cow that morning, while the mash was fermenting, or the container cooking, or the worm collecting and dripping its contents, would not ■ demand a charge on alibi. No question seems raised in the record that the factory was his and the manufacture his. Everything that was found bore out his statement to the officers, and seems completely to establish his knowledge of and identity with the entire transaction. It hardly seems worth arguing that appellant would or could have said to the officers, “I am a-cooking,” if he had no knowledge of what was going on, and if some enemy had slipped into his house in his absence and started the operations upon the customary implements for carrying on the forbidden business. The statute governing the instant case forbids the -direct or indirect manufacture of intoxicants,' and we would not think it necessary for the proof to show the personal presence of the accused, as an indispensable element to his guilt. The law deals with substance, not with shadows, and, in order to entitle him to demand a charge presenting an issue, he must show facts to the court which substantially support the theory that,' if his personal, presence was not shown, he could not be guilty. Polanka v. State, 33 Tex. Cr. R. 634, 28 S. W. 541; Parker v. State, 40 Tex. Cr. R. 121, 49 S. W. 80; Underwood v. State, 55 Tex. Cr. R. 604, 117 S. W. 809; Hernandez v. State, 64 Tex. Cr. R. 73, 141 S. W. 268; Myers v. State, 65 Tex. Cr. R. 448, 144 S. W. 1134. The trial court submitted this case to the jury on the theory of principals, and we find in the charge the following:

“You are charged that if another did in fact commit the offense, as alleged in the indictment, and the defendant did not know the unlawful intent, and did not aid by acts or encourage by words or gestures, he would not be a principal; and in the event you have a reasonable doubt thereof, you will acquit him.”

And in another part of said charge is the following:

“But unless you do so believe from the evidence, beyond a reasonable doubt, that the defendant, either alone or acting with some other person, did in the said state and county, on or about the 31st day of October, 1921, either directly or indirectly unlawfully manufacture intoxicating liquor as alleged in the indictment, and as is hereinbefore defined, and not for medicinal, mechanical, scientific, or sacramental purposes, and not for any of said purposes, you will acquit the defendant, and so say by your verdict.”

This gave to the appellant the law of the issues raised by the evidence as we view same, and obviated the need for any charge presenting the theory that some person other than appellant was the manufacturer, if any, in the instant case.

Complaint is made of the reception of the statements of appellant as made to the officers, it being urged that he was under arrest and unwarned. We do not think he was under arrest. The officers were going to his house. They had no warrant of arrest for him. They did not know what he' had in his home. His statements were entirely voluntary, and without inducement or threats. The reception of such evidence might be justified upon the further ground that same amounted to a statement” made by him, found later to be true, and which conduced to establish guilt. As stated above, the officers were ignorant of his commission of crime. The fact of manufacture was unknown, likewise the place. Appellant not only said, “You have got me,” and “I am a-eooking,” but made the further statement that it” was at his house. The cooking was at the' house of appellant, as was later ascertained and verified. We are not at all sure that the conversation would not also be admissible as res gestae. The cooking of the mash was evidently going on, and it was a part of the process of manufacture. The statements were made by appellant a short distance from the scene, and while that much of the manufacture was in actual progress.

We think the testimony that the private road' leading from the public road to the residence of appellant showed much evidence of recent travel was admissible for what it was worth as a circumstance supporting the claim of the state that illicit liquor was being manufactured and sold at appellant’s house. This was true of the testimony of witness* Sanders that automobiles and other vehicles frequently passed his house in the nighttime going1 in the direction of appellant’s home.

We are not impressed that the Dean Law as applicable to the manufacture of in-intoxicating liquor was so changed by the amendment thereto contained in chapter 61, Acts 1st Called Session 37th Leg. p. 233 (Vernon’s Ann. Ben. Code Supp. 1922, art. SSS1^ et seq.), as to amount to a repeal of the former law, and to thereby necessitate the reversal of the conviction of one who manufactured liquor prior to November 15, 1921, same being the date of the taking effect of said amendment. There was no change in the law forbidding the making of intoxicants save the taking out of the definition of the offense the exceptions formerly contained in that section of the statute defining the offense, and the incorporation of such exceptions in a separate section, and the removal’ of the purchaser of such liquor from the class of those who were made punishable by-said act. This matter was discussed by us in Ex parte Mitchum (Tex. Cr. App.) 237 S. W. 936.

Finding no error in the record, the judgment of the trial court will be affirmed.

On Motion for Rehearing.

MORROW, P. J.

Appellant insists that in upholding the ruling of the trial court in admitting the testimony relating to the conversation between the appellant and the officers who found the still in his house this court was in error.

The sheriff testified that he, in company with other officers, went to appellant’s place of residence, and on the way, about 300 yards from his home, they met and overtook him. The officers slacked up their conveyance, which was an automobile, and one of them said to the appellant, “Get in, Jim,” and he got in ,,the car. The sheriff had a warrant to search the premises of the appellant. Immediately after the appellant got into the car, he said: “You have got me.” One of the officers inquired, “Where is it,” and the appellant said, “In the house.” The officer then said, “How much have you got,” and appellant replied, “Not much.” In connection with appellant’s statement, “Well, you have got me,” the officer testified: “1 think I asked him what for — making whisky?” He said, “I don’t deny it.” In the same connection with this testimony, one of the parties with the sheriff said to appellant, “Which way' are you going?” that on overtaking the appellant he said, “Get in the car, and ride with us a piece; we are going down your way.” He came around and got in on the side, and said, “Charlie, you come after me?” and the witness said, “Why?” Appellant said, “Well, you got me,” and the witness said, “What are you doing, Jim?’ He said, “Well, I am a-cooking; you have got me.” The sheriff and his companions accompanied the appellant in the car to his house, and they there found a still, a keg of whisky, and a bottle of whisky, one barrel of mash in the dwelling, and two in, the smokehouse, a copper boiler containing fi capacity of 12 gallons, and a copper worm. The boiler was full of mash,’ and was setting on the stove in the dwelling house. There was a fire burning in the stove. The vessel was very hot. The worm was lying on the floor right close to the stove, but not connected. The witness went into further detailed description of the still. No doubt, under the facts revealed by the record, at the time the declarations of the appellant in question were made, he was in custody within the meaning of article 810 of Code Grim. Proc. relating to confessions. Illustrative cases are Roberts v. State, 83 Tex. Cr. R. 139, 201 S. W. 998; Clark v. State, 84 Tex. Cr. R. 390, 207 S. W. 98; Willoughby v. State, 87 Tex. Cr. R. 40, 219 S. W. 468; Campbell v. State, 89 Tex. Cr. R. 243, 230 S. W. 695.

The question arises: Was not the testimony admissible under the part of the statute mentioned, reading thus:

• * * * Unless in connection with said confession he makes statements of facts or ciri eumstanees that are found ,to be true, * * * such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed.”

Many • cases construing this article are found. Among them are Davis v. State (Tex. Cr. App.) 23 S. W. 687; Patterson v. State, 89 Tex. Cr. R. 402, 231 S. W. 763; Torrence v. State, 85 Tex. Cr. R. 310, 212 S. W. 957; Washington v. State, 86 Tex. Cr. R. 327, 216 S. W. 869; Rippey v. State, 86 Tex. Cr. R. 599, 219 S. W. 463; Singleton v. State, 87 Tex. Cr. R. 302, 221 S. W. 610; Williams v. State, 88 Tex. Cr. R. 87, 225 S. W. 177; Garcia v. State (Tex. Cr. App.) 228 S. W. 938; McGoldrick v. State, 89 Tex. Cr. R. 585, 232 S. W. 851; Branch’s Ann. Tex. Penal Code, § 63, and eases therein collated. The record reveals no such previous knowledge of the location of the instruments with which the crime was committed as would render the declarations complained of inadmissible under the statutory rule which requires that the finding of the fruits of the crime or instruments used in its commission shall be because of the information gained from the accused through the confession. See Willoughby v. State, 87 Tex. Cr. R. 40, 219 S. W. 468; Kennon v. State, 11 Tex. App. 356; Nolen v. State, 14 Tex. App. 485, 46 Am. Rep. 247; Owens v. State, 16 Tex. App. 460. Appellant accompanied the officers to his dwelling after making the statements mentioned, and in his presence the equipment for the manufacture of whisky was found while the liquor was in the process of making. The officers, if their testimony is to be believed, did not previously know that the still was in the appellant’s house and in operation, though they did entertain a suspicion of, its presence there. It is believed that this was not such knowledge as would operate to exclude the testimony mentioned. It is by no means clear that the evidence complained of was not admissible under the rule of res gestee. Declarations of one accused of crime which come within this rule are admissible, either for or against him, even though at the time he be under arrest. Branch’s Ann. Tex. Penal Code, §§ 84, 85 and 86. At the time that -the declarations were made, the accused, while not immediately within his dwelling-house, was in fact at his home, and was actually engaged in making the whisky. He was, in fact, cooking. Under these circumstances, the declaration that he was doing so would apparently, under the liberal interpretation of the res gestae rule which obtains in this state, be admissible. Wharton’s Crim. Evidence, § 262, note, p. 491.

There was no error, we think, in refusing to call upon the jury to determine whether appellant’s guilt was that of an accomplice, and not a principal. To make him a principal it was not necessary, under the facts developed from the record, that he he present at all.times during the manufacture ■of the liquor. The apparatus was not assembled in a moment; it was capable of manufacturing whisky; it was in his house, and the circumstances amply justified the finding that it was in his possession, albeit he may have possessed it in conjunction with others. Not only the equipment for making intoxicating liquors, but a considerable quantity of intoxicating liquor itself, was found upon the premises, also in the possession of ,the appellant — that is, in the house where he and his family lived — and his own declarations to the officers warrant the finding of the jury that he was cognizant of its presence. To connect him with guilt it was not necessary that the evidence should show that on the particular day of his arrest he was present when the fire was lighted or when the coil was connected. The nature of the crime was pot one that demanded his continued persence during the manufacture of the liquor in order to make him a principal.

Upon this same reasoning, we think the request for the submission of the issue of alibi was properly refused.

The motion for rehearing is overruled.  