
    PARSONS v. STATE.
    (No. 8294.)
    (Court of Criminal Appeals of Texas.
    April 30, 1924.
    Rehearing Denied Nov. 5, 1924.)
    1. Intoxicating liquors <&wkey;>222 — Indictment need not negative exceptions to statute prohibiting manufacture.
    It is not necessary that indictment negative exceptions to statute prohibiting manufacture of intoxicating liquor.
    2. Intoxicating liquors <&wkey;233(2) — Refusal to instruct that jury disregard testimony that defendant possessed mash held without error.
    There was no error in refusing to instruct .jury to disregard testimony showing that defendant was in possession of large quantity of mash; it being circumstance available on issue of unlawful manufacture.
    .3. Criminal law <&wkey;8l I (4) — Refusal to instruct to acquit unless still was connected by defendant held without error.
    There was no error in refusing to instruct that, unless still was connected by defendant, -acquittal of unlawful manufacture must result; it being detail court was not required to single out.
    4. Criminal law <&wkey;726 — Argument of state’s counsel held not to warrant reversal.
    Where, in, prosecution for manufacture of intoxicating liquors, defendant’s attorney stated it would be .a shame to send defendant, who had wife and four children, to penitentiary, argument of staters counsel that jury had right’ of other women and children besides that of defendant’s to protect, held, in view of evidence and verdict, not to warrant reversal.
    5. Criminal law <&wkey;394 — Failure of officers to exhibit search warrant did not preclude their testimony as to facts discovered on prem- ' fses.
    Fact that officers did not exhibit search warrant did not preclude their testimony, in prosecution for unlawful manufacture of whis-ky, as to facts which they discovered on defendant’s premises.
    6. Criminal law <&wkey;f 119(2) — Asking defendant’s witness if it was not bold to put still so close to church held without prejudice.
    There was no prejudicial error in asking defendant’s witness “if it was not pretty bold to put a still so close to a church”; surrounding facts not being revealed.
    7. Criminal law <&wkey;4!9, 420(1) — Statement that defendant wanted to make whisky for medicinal purposes held, hearsay.
    Defendant’s inquiry of witness as to. method of making whisky, stating he intended to make some for medicinal purposes, held hearsay.
    8. Intoxicating liquors &wkey;>233(2) — Proof of still on premises held relevant.
    In prosecution for manufacturing intoxicating liquor, proof that there was still on premises was relevant.
    9. Criminal law &wkey;>465 — Facts warranted witness’ statement that beer and mash on premises were intoxicating.
    Facts held to warrant statement by witness that beer and mash, ready for distillation and found on defendant’s premises, were intoxicating.
    10. Criminal law <&wkey;>1144(18) — Evidence on motion for new trial, not set out in record, presumed to support ruling thereon.
    Presumption obtains that evidence heard on motion for new trial, but not set out in record, contradicts affidavits filed therein to degree which supports trial court’s ruling on issue of facts raised by them.
    On Motion for Rehearing.
    11. intoxicating liquors &wkey;>236(l9) — Evidence held sufficient to convict for unlawful manufacture.
    Evidence held sufficient to convict for unlawful manufacture of intoxicating liquor.
    12. Criminal law <&wkey;338(4, 5) — Finding still near place where defendant operated one held admissible.
    In prosecution for unlawful manufacture of intoxicating liquor, evidence of finding, of another still near place where defendant was operating one was admissible.
    Appeal from District Court, Titus County; R. T. Wilkinson, Judge.
    Mark Parsons was convicted of unlawful manufacture of intoxicating liquor, and lie appeals.
    Affirmed.
    J. F. Wilkinson and Hiram Brown, both of Mt. Pleasant, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The conviction is for the unlawful manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of one year.

The state’s testimony is sufficient to establish the commission of the offense by the appellant. Appellant testified that he had made no whisky, but was preparing to do so for medicinal purposes, giving details with reference to tuberculosis and other ailments for which it was desired to use the whisky.

Under the present statute it was not necessary to the validity of the indictment that it contain an averment negativing the exceptions to the statute prohibiting the manufacture of intoxicating liquor. See Crowley v. State, 92 Tex. Cr. R. 103, 242 S. W. 472; Stringer v. State, 92 Tex. Cr. R. 46, 241 S. W. 159. According to the state’s evidence, appellant manufactured the whisky. . We have discerned no testimony requiring that the intoxicating character of the liquor be submitted in a more specific manner than was done by the court’s charge. No affirmative testimony is observed to the effect that the liquor manufactured by the appellant was other than intoxicating. It was appellant’s theory that he was preparing to make whisky for medicinal purposes, while that of the state was that whisky had been manufactured by the appellant.

There was no error in refusing to instruct the jury to disregard the testimony showing that the appellant was in possession of a large quantity of mash. This was a circumstance available to the state upon the issue presented by the pleading; nor was there error in refusing to instruct the jury that, “unless the still was connectéd by the appellant,” an acquittal must result. This was a detail which the court was not required to single out for an instruction to the jury. The .circumstances surrounding the transaction are sufficient to show that the appellant was engaged in the manufacture of whisky, whether he did the physical act of connecting the still or not.

It appears that the appellant’s attorney, in argument, stated to the jury that it would be a shame to send the appellant, who had a wife and four small children, to the penitentiary on the testimony in the case. .In reply, state’s counsel said that “the jury had the right of other women and children besides that of the defendant’s wife and children to protect, and should consider why defendant should so disregard his obligations to his .wife as to make stuff to be distributed over the country to other women and children, to wreck and corrupt their morals.” It would be better for both counsel for the appellant and the state to confine their discussion within legitimate bounds. There is some question whether we should consider the qualification to the bill. Whether justified or not, the argument of state’s counsel, considered in the light of the argument of appellant’s counsel, the evidence, and the verdict, is not of such a nature as to warrant a reversal. The evidence, is sufficient to establish the offense, and to connect the appellant with it. The punishment was the lowest permitted by law.

The fact that the officers did not exhibit a search warrant would not preclude them from testifying to facts which they discovered upon the appellant’s premises. It seems, however, that they did act under a search warrant. The ease of Welchek v. State, 93 Tex. Cr. R. 271, 247 S. W. 524, is in point.

We think there is no prejudicial error shown by the bill complaining of the fact that one of appellant’s witnesses was asked “if it was not pretty bold to put a still so close to a church.” The surrounding facts are not revealed.

The fact that appellant inquired of the witness Amerson touching the method of making whisky, and stating that he intended to make some for medicinal purposes, was properly excluded as hearsay. No facts are revealed which would bring it within any of the exceptions to the rule excluding self-serving or hearsay testimony. The proof that there was a still upon the premises was relevant upon the issues involved. The court instructed the jury that the possession of the still was not an offense. It was, however, a circumstance- available to the state.

The witness Cooper testified that he observed beer and mash upon the appellant’s premises, ready for distillation; that he did not drink it; that it was stronger than 4 per cent, beer; that he saw what was in the pot at the still that day; that it was mash used for making whisky. The bill is meager, but the facts stated warranted the court in permitting the witness to testify that the article was intoxicating.

Appellant complains in bill of exceptions No. 11 that the court erred in refusing to grant a new trial, in order that he might have the benefit of the testimony of I. L. Hays on the former trial; “such testimony being very material, as it appears by the affidavits J. P. Willson and J. M. Keith.” What was in these affidavits is not shown by the bill of exceptions which was filed October 10, 1923, subsequent to tbe term of court at which the trial took place, which adjourned on, July 14th. Attached to the motion for new trial are the affidavits of Willson and Keith to the effect that Hays had testified on the former trial that it was he who connected the still, and that when he arrived the still was not connected. These affidavits give no information touching the reason for the absence of this testimony, if it was material. Moreover, the order of the court in overruling the motion for new trial states that he heard evidence thereon, and in this state of the record the presumption obtains that the evidence heard was contradictory of the affidavits to a degree which supports the ruling of the court on the issue of fact raised by them. Cade v. State (Tex. Cr. App.) 258 S. W. 484; Harcrow v. State (No. 8069) 261 S. W. 1046, recently decided.

The judgment is affirmed.

On Motion for Rehearing.

DATTIMORE, J.

Appellant insists that the testimony does not show that' the officers found intoxicating liquor at the still on the occasion of their raid. We quote from the testimony. Ben Chapman testified:

“There was same whisky there. There was some stuff in the pot and a fire under the pot. They had some whisky there in a fruit jar. * ' * * I saw some whisky there. * * * Mr. Cooper had the whisky out there at the still when I saw it first. I don’t know where Mr. Cooper got the whisky. I don’t know whether it was made by that still or not.”

Mr. Cooper said:

“They had a complete outfit out there. It was fired up and the still was running whisky in a fruit jar. * * * I saw the whisky running out in a very small stream. I know it was .whisky.”

Witness Hays testified:

“I found that still set up and in operation; a fire was under it and mash in the pot, and it was running. I saw a jar sitting under the mouth of the flake stand and a fire under the pot. Directly Mark [appellant] came around and disconnected it, and I went back and put it up again, and Mark said: ‘Now, you are making whisky, and not me.’ ”

This evidence satisfactorily shows not only the presence of whisky but its manufacture. This court has held in many cases that whisky is intoxicating liquor. We áre still of the opinion that the finding of another still near the place where appellant was operating one was admissible.

Appellant complains that we erred in stating that the trial court heard evidence at the time he overruled the motion for new trial. We quote from the order • overruling the motion for new trial:

“The court, having heard said motion and the evidence thereon submitted, is of the opinion that the same should be overruled.”

We have again reviewed the testimony, and regret our inability to agree with appellant’s contention that it was not sufficient to justify the conclusion of guilt.

The motion for rehearing will be overruled. 
      <S=5>Por other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes
     