
    EVANS v. STATE.
    (No. 7940.)
    (Court of Criminal Appeals of Texas.
    Dec. 12, 1923.)
    1. Criminal law &wkey;>364(V2), 519(4) — Statement held not made under duress and res gestee.
    Where sheriff informed accused that he was there to search his premises for whisky and a still, and that he had a search warrant, a statement then made by accused in response that he had whisky for his own use was not inadmissible as being made under duress; statement also seeming to be res gestse.
    2. Intoxicating liquors <&wkey;>236( 19) — Evidence held to support conviction for manufacture.
    Evidence held! to support a conviction for manufacture of intoxicating liquor.
    Appeal from District Court, Liberty County; J. L. Manry, Judge.
    J. T. Evans was convicted of manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    Tom Garrard, State’s Atty., of Midland, and Grover C. Morris, Asst. State’s Atty., of Devine, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Liberty county of manufacturing intoxicating liquor, and his punishment fixed at one year in the penitentiary.

The record contains two bills of exception. The first bill complains of the introduction in evidence of a statement made’ by appellant to the sheriff of the county, to the effect that he had whisky for his own use. The ground of the objection's that appellant was under duress. From the bill of exceptions we leam that the sheriff had informed appellant that he was there to search his premises for whisky and a still and that he had a search warrant. It was in response to this statement by the officer that appellant made the answer here claimed to be objectionable. We are jmable to agree with the contention. The fact that the officer had a search warrant directing him to search the premises would not be tantamount to a warrant, and, unless the testimony supporting the objection went further, we could not hold the owner of the premises sought to be searched under arrest, by a mere statement to him by the officer of the fact of his possession of such search warrant and his intention to execute same by searching the premises. It further appears in this' record that, after the premises were searched, the officer did not then arrest appellant, but went away and left him. The statement also seems res ges-tee.

The only other bill of exceptions complains of the testimony of the sheriff in detailing the conversation had by him with the appellant when he went down to where appellant was and told him that he had a séarch 'warrant. The officer testified that appellant then told him that he had some whisky for his own use. The officer further testified that he had made no search at that time and had found nothing, and had not asked appellant what he had done, and that appellant volunteered the statement that he had some whisky for his own use. We do not think this to evidence a statement made under duress, as has just been stated by us above. From the state’s testimony we learn that in appellant’s smokehouse was found‘a barrel of mash, and behind the smokehouse was a five-gallon oil can having dough around the spout, and the can was smutty and smelled like whisky. Fruit jars and bottles in the smokehouse also had the scent of whisky in them. It is made to appear without objection that appellant told a state witness that the apparatus described was what he had cooked his mash in. State witness Wheat testified that appellant told him that he had made whisky for his own use, and that he had given some drinks to some of his good friends. The officer found a pint of whisky in the house of appellant. The state introduced a Mr. Smith, who testified to a conversation with appellant, evidently after his arrest on this charge. Detailing the conversation had, this witness said that appellant made the following statement to him:

“I didn’t think it was a violation of the law to make it for your own use. I have got some for my own use and don’t deny it, and drink it and gave some of my friends some of it, and I guess some of my good friends must have given Mr. Wheat a tip to turn me in.”

The evidence seems to support the conviction, and finding no error in the record, an affirmance must be ordered. 
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