
    WILKES v. STATE.
    (No. 10007.)
    (Court of Criminal Appeals of Texas.
    Dec. 15, 1926.)
    1. Criminal law &wkey;»394 — Officers’ testimony of manufacture of liquor will not be suppressed because obtained without search warrant.
    Refusal of motion to suppress testimony of officers as to illegal manufacture of liquor on ground that it was obtained without search warrant held not erroneous.
    2. Criminal law &wkey;>394 — Evidence of officers of illegal manufacture of liquor, obtained after observing defendant engaged therein, held not obtained by illegal search.
    Evidence of illegal manufacture of liquor, obtained by officers after observing defendant and another apparently engaged ih manufacture thereof, held not obtained by illegal search.
    3. Criminal law <&wkey;595(4) — Testimony that defendant had not been where he was discovered manufacturing liquor very long held not sufficiently material to warrant continuance.
    Testimony that defendant had not been at home of person where he was arrested while engaged in manufacturing liquor for great length of time before discovery held not of such sufficient materiality as to warrant continuance.
    4. Intoxicating liquors <&wkey;239(l) — Charge on meaning of “possession” held sufficient.
    Charge, in prosecution for manufacture of intoxicating liquor, defining “possession” as having had actual care, control, and management of property, held sufficient.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Possession.]
    5. Intoxicating liquors <@=^239(4)— Charge held to sufficiently present affirmative defense of being at place where he was arrested as visitor and without knowledge of still.
    Charge, in prosecution for manufacturing intoxicating liquor, presenting defendant’s affirmative defense, to effect that he was only visitor at place where he was arrested and had no knowledge of still, held to sufficiently present such defense.
    6. Witnesses t&wkey;337(5)— Defendant held properly questioned relative to conviction and charge of other felonies' as affecting credibility.
    Defendant, in prosecution for manufacturing intoxicating liquor, held properly questioned relative to his .conviction and being charged with other felonies for purpose of proving his credibility as witness.
    Appeal from District Court, Hopkins County ; J. M. Melson, Judge.
    John Wesley Wilkes was convicted of possessing mash and equipment for manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    Ramey & Davidson, of Sulphur Springs, for appellant. *
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeek, for the State.
   LATTIMORE, J.

Conviction in district. court of Hopkins county of possessing mash and equipment for the manufacture of intoxicating liquor; punishment, two years and six months in the penitentiary.

Officers were on their way at night for the purpose of conducting an investigation of appellant’s premises. As they were passing the home of one Lewis several hundred yards from that of appellant, they observed a light in the smokehouse of Lewis. The walls of the house had large cracks in them. Approaching the smokehouse and looking through the cracks the officers observed appellant and a negro engaged apparently in fitting a pipe into a barrel. There was a still in the smokehouse, and a furnace full of mash was over a fire, which was burning. The officers arrested appellant and the negro, and his trial and conviction followed.

Passing upon the complaints in the order in which they appear in appellant’s brief, we observe that it was not error for the court to refuse appellant’s motion to suppress the testimony of the officers upon the ground that the same was obtained without a search warrant. This court has uniformly declined to grant such motions even in cases which might be deemed appropriate under some federal practice. As applied to the instant case, we would further say that the facts would not seem, even under the federal practice, to call for the granting of the motion. The evidence was not obtained by any illegal search.

Appellant made a motion for continuance because of the absence of one Gowen by whom he expected to show that he had not been at the home of Lewis a very great length of time when the officers discovered him. We are unable to agree that the testimony of Gowen was of that degree of materiality which would render reversible error the action of the court in overruling the motion.

There was a special charge asked instructing the jury as to the meaning of the term “possession.” In the charge the court defined the word “possession” as meaning that the person alleged to have been in possession must have had actual care, control, and management of the property at the time. This was sufficient.

We find no error in the charge of the court in submitting the definition of principles and making it applicable to the facts in this case.

Appellant complains of the fact that the charge did not affirmatively present his defense. As we comprehend the record, the affirmative defense, if any, was that appellant had gone down to Lewis’ place and into the smokehouse and was there without prior knowledge of the fact that there was any still there, and that he remained only a very short time and took no part in the operation of the still. The court told the jury that if they believed from the evidence that appellant did not know the intent of Lewis or the negro, or either of them, in the possession of the still, mash, material, equipment, etc., and did not aid by acts the said parties, or if they had a reasonable doubt of these facts, they should acquit the appellant. We think this sufficiently presented his affirmative defense.

Appellant was asked in regard to his conviction and being charged with other felonies. This was admitted for the purpose of affecting his credibility as a witness. The court so told the jury in the charge. We are unable to agree with appellant in his complaint in this matter. We are of opinion that the testimony sufficiently supported the finding of the jury.

Finding no error in the record, the judgment will be affirmed. 
      <Suu>For other cases see same topic and KEY-NUMBER in all Key-Numbered pigests and Indexes
     