
    HARDAWAY v. STATE.
    (No. 6485.)
    (Court of Criminal Appeals of Texas.
    Jan. 4, 1922.)
    1. Intoxicating liquors <&wkey;l32 — State law against illegal manufacture not affected by act of Congress enforcing prohibition amendment.
    The state law against illegal manufacture of intoxicating liquors is not rendered invalid by Act Cong. Oct. 28,1919, enforcing Const. U. S. Amend. 18.
    2. Criminal law &wkey;s409 — State introducing defendant’s statement is bound by its exculpatory feature unless shown untrue.
    The state, on prosecution for unlawful manufacture of intoxicating liquors, having introduced defendant’s written statement admitting his connection with the equipment found, and that he intended to manufacture liquor, but had made none, its exculpatory features are binding on the state, unless shown to be untrue.
    3. Intoxicating liquors &wkey;>236( 19) — Evidence held insufficient to show unlawful manufacture.
    Circumstantial evidence on prosecution for illegal manufacture of liquor held not to prove defendant’s explanation and denial untrue, or to prove that he made intoxicating liquor.
    .Appeal from District Court, Upshur County; J. R. Warren, Judge.
    J.T. Hardaway was convicted of unlawful manufacture of intoxicating liquor, and appeals.
    Reversed and remanded.
    T. H. Briggs, of Gilmer, and Simpson, Las-seter & Simpson, of Tyler, for appellant.
    R. G. Storey, Asst. Atty. Gen., 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 phase of the statute upon which the conviction rests is not rendered invalid by the act of Congress (41 Stat. 305) enforcing the Eighteenth Amendment to the federal Constitution. Ex parte Gilmore, 88 Tex. Cr. R. 529, 228 S. W. 199.

Equipment suitable for the manufacture of whisky was found upon the farm of the appellant. He did not testify as a witness, but a written statement signed by bim in tbe nature of a confession was introduced by the state, in which he admitted his connection with the equipment mentioned. He said that it was incomplete but that he intended to complete it and use it in making whisky. From his statement, we quote:

“I have'never made any whisky, but was fixing to try to make it at the time the officers came to my house.”

He assumes the position that, the prosecution having introduced the written statement, its exculpatory features are binding upon the state, unless shown to he untrue. This is a rule that finds support in many cases. Pratt v. State, 50 Tex. Cr. R. 231, 96 S. W. 8; Pratt v. State, 53 Tex. Cr. R. 290, 109 S. W. 138; Jones v. State, 29 Tex. App. 21, 13 S. W. 990, 25 Am. St. Rep. 715; Combs v. State, 52 Tex. Cr. Rt 617, 108 S. W. 649; Bishop’s New Crim. Law (2d Ed.) vol. 2, § 1241; Pinckens v. State, 86 Tex. Cr. R. 659, 218 S. W. 755; Wool v. State, 83 Tex. Cr. R. 121, 201 S. W. 1006; Sharp v. State, 81 Tex. Cr. R. 256, 197 S. W. 207; Menefee v. State, 67 Tex. Cr. R. 201, 149 S. W. 138.

The state’s burden was to prove that the appellant had manufactured whisky. This was not discharged by the mere proof that he possessed equipment therefor. The possession of the equipment in the instant case was a circumstance favorable to the state, but the mere intent and preparation to manufacture liquor does not constitute the offense charged. Cheatham v. State, 57 Tex. Cr. R. 442, 125 S. W. 565; Pratt v. State, 50 Tex. Cr. R. 227, 96 S. W. 8; Cyc. of Law & Proc., vol. 12, p. 177; Code of Crim. Proc. Art. 772.

There was found a small quantity of liquor, which the witness Brice said was whisky. He claimed that it was found by the witness Hogg. Where it was found is not stated by either Brice or Hogg, who was also a witness. The bottle is described as a catsup bottle; the stopper, a corncob with a rag around it. Brice said: “It smells like coal oil a little bit, but it is corn whisky.” The quantity was not more than two ounces. According to the state’s witnesses, the bottle had previously contained oil; and the percentage or proportion of alcohol in the bottle was not within the knowledge of the witness. The state relied upon circumstantial evidence alone, and the jury was so instructed. Aside from the two ounces of liquor mentioned, no whisky or other intoxicants were found so far as the evidence reveals. As stated, the state proved the explanation made by the appellant of his possession of the mash and equipment, and his denial of the manufacture of the whisky. Tested by the rales of circumstantial evidence, the testimony

does not, in our opinion, prove his explanation and denial untrue, nor does it prove that he made intoxicating liquor. From his denial, proved by the state, the hypothesis of innocence affirmatively appears. In our opinion, it was not overcome.

For that reason the judgment is reversed, and the cause remanded. 
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