
    WILDE v. STATE.
    (No. 9171.)
    (Court of Criminal Appeals of Texas.
    Dec. 22, 1926.)
    1. Criminal law <®=^>339 — Officer may take measurement of admitted track or of foot of accused for comparison with footprints found at scene of crime.
    Officer may take measurement of foot of accused or of admitted track, and compare such measurements with tracks made at or near scene of crime, where such tracks have evidential value.
    2. Criminal law i@=3l 159(2) — Verdict will not he disturbed, unless lack of evidence indicates passion or prejudice.
    Verdict will not be disturbed, unless record manifests such lack of evidence as to lead court to conclude verdict resulted from passion or prejudice; state’s evidence being considered in determining whether verdict was proper.
    3. Intoxicating liquors <®=?236(I9) — Evidence held to sustain oonviotion for manufacturing intoxicating liquor.
    Where, on premises of accused’s father-in-law, sheriff found still from which wagon tracks led to accused’s yard, footprints at still corresponding with accused’s where roof of dugout in which still was found was composed of cross-ties similar to those found in accused’s wagon, and where accused had whisky in house similar to that found in still, evidence held to sustain verdict for manufacturing intoxicating liquor.
    Appeal from District Court, Archer County; H. R. Wilson, Judge.
    T. J. Wilde was convicted of manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    Davenport, Cummings & Thornton and Hey-ser & Hicks, all of Wichita Falls, and Richard Dresser, of Seymour, 'for appellant.
    
      James V. Allred, Dist. Atty., of Wicliita. Falls, Tom Garrard, State’s Atty., of Lubbock, and Grover C. Morris, Asst. State’s Atty., of Devine, for tbe State.
   LATTIMOEE, J.

From a conviction in the district court of Archer county for the offense of manufacturing intoxicating liquor, with punishment fixed at one year in the penitentiary, this appeal is taken.

There are-four bills of exception, the first of which complains of the refusal of a peremptory instruction, which was properly overruled. The second bill was to the refusal of a special charge presenting the defense of alibi. Said defense was fully covered in a special charge which was given, and the refusal of the charge complained of in this bill of exceptions was not erroneous. The bill of exceptions, based on complaint of a paragraph of the court’s main charge, is without merit and does not need discussion. Authorities are numerous, and need not be cited, supporting the proposition that it is permissible for the officer to take measurements of the admitted track of the accused, or of his shoes or foot, and then compare same with tracks made either at or near the scene of the crime or some other place, where such tracks have evidential value.

Appellant’s principal complaint is of the insufficiency of the testimony. We observe that the rule in this regard is that the verdict will not be disturbed, unless the record manifests such lack of evidence as leads us to conclude that same was the result of prejudice or passion on the part of the jury. Also, we observe that, in testing this matter, the state’s evidence is looked to. The sheriff of the 'county testified that, on a certain occasion, he went to appellant’s home and found there appellant, his wife. and two men, shown by other parts of the record to be two of appellant’s brothers-in-law who lived in Knoxi county. After some search around the house, the sheriff went along a little road north and then in through a gate into the pasture of appellant’s father-in-law, Mobitzer. In this pasture, at a point from a half to three-quarters of a mile from appellant’s house, a tank was found, from which tank a recent wagon track led in the direction of a little draw. There was a small earth dam of comparatively fresh dirt across this little branch. Failing to see where the dirt came from with which this dam was constructed, a search was made and a place discovered where water had been freshly spilled on the ground. Near this a door covered with earth and grass was discovered. Opening this door brought to light a dugout in which were found seven barrels of rye inash and a still in operation, from which whisky was dripping into a container. In. the dugout was a fresh barrel of water. Attached to the gasoline tank of the burner operating the still" was what was called a pear burner. Fresh wagon tracks were observed leading from the still, and human tracks were also noticed in and around the place. The wagon tracks were those of a wide tired wagon and easily followed. The officer followed them back through the field to the wagon of appellant which was standing in his yard with the team hitched to it. Appellant was asked to make a track which was measured and compared with the tracks at the still and was found to be identical. In another wagon in appellant’s yard was found a pear burner like the one attached to the still. A part of the roof of the dugout in which the still was found was composed of cross-ties. In the same wagon in appellant’s yard, in which was the other pear burner, were found several cross-ties similar to those used in the construction of the roof of the dugout. The mash in the barrels was rye mash, and in appellant’s barn were found sacks of rye. The other wagon in appellant’s yard was a narrow track wagon, and leading from the tank to the still were found tracks of a narrow track wagon older than the wagon tracks followed by the officer which led from the scene of the still to the appellant’s wagon standing in the yard. In appellant’s house were found a case and a half of pint bottles, and under some mesquite trees near the house were observed a number of quart bottles. Appellant’s brother-in-law, Mobitzer, testified for the defense and said that neither he nor his brother, nor any of his people, had anything to do with the still. In appellant’s house was a pint bottle of whisky, which he said was prescription whis-ky, but which the officer said looked like that found by him at the still. The court submitted the case to the jury on the theory of circumstantial evidence, and, to our minds, the evidence was amply sufficient to support the contusion of guilt.

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