
    GANDY v. STATE.
    (No. 8742.)
    (Court of Criminal Appeals of Texas.
    March 25, 1925.
    Rehearing Denied April 29, 1925.)
    Criminal law <@=3535(2), — Confession, corroborated by evidence establishing commission of offense by some one, held sufficient to support conviction for manufacturing.
    Accused’s confession, corroborated by evidence establishing commission of offense by some one, held sufficient to support conviction for unlawfully manufacturing intoxicating liquors.
    ■Appeal from District Court, Milam County; John Watson, Judge.
    Dewey Gandy was convicted of unlawfully manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    Chambers, Wallace & Gillis, of Cameron, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Appellant is under conviction for the unlawful manufacture of intoxicating liquor, with punishment assessed at one year in the penitentiary.

On December 21,1923, the sheriff of Milam county had search warrants authorizing him to searqh the promises of A. Gañdy and Jim Gandy. It is not shown how far apart these two persons lived, but we gather from- the evidence it was not a great distance. The officers separated; one squad going to A. Gandy’s premises, and the other to Jim’s. About half a mile south of A. Gandy’s house the officers found 4 barrels of mash and a 50-gallon container that showed evidence of having been used in the manufacture of whis-ky. They found several holes which had been dug in the ground, where fruit jars appeared to have been buried. No whisky was found upon the premises of A. Gandy. Not far from the premises of Jim Gandy were also found 4 barrels of mash buried in the ground and a 50-gallon container or still, and about 20 steps therefrom 13 half-gallon fruit jars of whisky were found buried. A plain trail led from the- house of A. Gandy in both directions to where this equipment and whisky was discovered. . The officers arrested A. Gandy and Jim Gandy, took them to Cameron, and placed them in jail. Appellant was a young man about 22 years old, a son of A. Gandy, and lived with his father. Appellant was not present at the time the officers first reached A. Gandy’s place, but came up while they were there. He was not formally placed under arrest, but was told to stay at the house with a couple of men, who were left with him while the others conducted the search. Before the officers returned from making the search, appellant had gone. The next morning he appeared at the sheriff’s office and asked to see the district judge, to whom the sheriff took him, and was by the district judge directed to the county attorney’s office. He there made the following statement, after being properly warned:

“My name is Dewey Gandy. I am the son .of A. Gandy, and reside near Hanover, in Milam county. I was at my father’s house on yesterday, December 21, 1923, when the sheriff was out at the place and made a search for whisky. I have been making whisky out there at the place, and had a still and coils and barrels and container and mash. I would cook the whisky off down in the woods or pasture. The whisky found by the officers belonged to me, and I made same during this year 1923. I was making that whisky to drink for beverage purposes. The first still and outfit that I had blew up, and I lost the liquor.”

No indictments were returned against A. Gandy and Jim Gandy, but upon appellant’s confession and the evidence discovered by'the officers the indictment was returned against appellant. No complaint is made at the charge' of the court, nor were any exceptions reserved to the admission or rejection of testimony. The only point urged is that the testimony is not sufficient to support a conviction. This contention is based upon the proposition that no evidence «connected appellant with the manufacture of the liquor, save his uncorroborated confession, and that this will not support a conviction.

To support his contention appellant relies chiefly upon Harris v. State, 28 Tex. App. 308, 12 S. W. 1102, 19 Am. St. Rep. 837, and upon a later opinion in a subsequent appeal, of the same case, reported in 30 Tex. App. 549, 17 S. W. 1110. Mary Harris was charged with the murder of her child by drowning. Examination of the opinions in the two cases very clearly shows that the evidence (other than the confession of accused) showed the child was born alive, but nothing save her confession showed that the child met a violent death by drowning. This was the -point in the mind of the court at the time the two opinions were written. Appellant relies upon the following expression found in the case reported in 28 Tex. App. at page 308, 12 S. W. 1102, 19 Am. St. Rep. 837:

“The corpus delicti consists, not merely of an objective crime, but of the defendant’s agency of the crime, and it is well settled that, unless the corpus delicti in both these respects is proved, a confession is not by itself enough to sustain a conviction.”

Later opinions of this court show that, if the expression just quoted was regarded at the time it was uttered as a correct proposition, it has long since been abandoned, and for many years an entirely different rule has obtained in this state. In Sullivan v. State, 40 Tex. Cr. R. 633, 51 S. W. 375, Judge Davidson, writing in a case where a 30-year term in the penitentiary had been awarded Sullivan upon a murder conviction, used this language:

“Appellant contends the court erred in refusing to give certain special instructions requested by him, in which it was sought to present his theory of the case. They are based upon the proposition that, the uncorroborated confession of an accused is not sufficient to justify a conviction. That is a very sound proposition of law, but, as we understand the record, it has no application to this case. The evidence places beyond question that deceased (Charley Williams) was in a ballroom, engaging in the festivities, when some one approached from the outside, and shot him through the window. It is also shown that at the time this shot was fired two shots were fired in the ballroom, one taking effect in the leg of one Gentry. Tiñere is no direct positive evidence as to who fired the shot from the outside, except the confession of defendant. His confessions are clear and unequivocal. He states that, while standing outside, he shot deceased through the window. It is well settled that the confession of the accused alone will not justify a conviction. This question has been frequently decided by various decisions in this state; but, so far as we are aware, it is settled that, the death of the deceased being shown to have been brought about by the criminal agency or procurement of some one, the confession is suf-fident to connect the party making the confession with the crime.”

To the same effect is White v. State, 40 Tex. Cr. R. 366, 50 S. W. 705. Again in Gallegos v. State, 48 Tex. Cr. R. 58, 85 S. W. 1150, Judge Davidson said:

“Wherever the corpus delicti is proved, a confession is of sufficient cogency to connect the party making the confession with the killing, and has been regarded, as far as we are aware, by all the authorities as a sufficient predicate to support the conviction. Some of the authorities, and the later decisions of this court, have gone even farther, and hold that the 'confession could be used to assist in making out or establishing the corpus delicti. But Under all the authorities, so far as we are aware, a homicide being proved, the confession is sufficient to connect the party making that confession with a guilty participancy in the homicide.”

Other cases adhering to this principle will be found collated under section 1890, p. 1049, Branch’s Ann. P. C. See, also, Brice v. State, 78 Tex. Cr. R. 42, 179 S. W. 1178; Mettall v. State, 89 Tex. Cr. R. 216, 232 S. W. 315; Lyles v. State, 91 Tex. Cr. R. 127, 237 S. W. 558; Lawson v. State, 96 Tex. Cr. R. 322, 257 S. W. 559.

The offense charged in the present ease was the unlawful manufacture of intoxicating liquor. Regardless of the confession, the evidence amply established that this offense had been committed by some one, and the corpus delicti was thus shown. We see no reason why the principle heretofore announced in many eases should not also be pertinent in the present instance. The confession of appellant (the crime already having been established by other evidence) is held to be sufficient to show his guilty connection with the offense.

Believing the evidence amply sufficient to support the judgment, an affirmance is ordered.

On Motion for Rehearing.

In view of appellant’s motion for rehear-ihg, we have re-examined the authorities upon which our conclusions were based. We are confirmed in our opinion that the case has been properly decided.

The motion is overruled.  