
    RICE v. STATE.
    (No. 10214.)
    Court of Criminal Appeals of Texas.
    Dec. 15, 1926.
    Rehearing Denied June 24, 1927.
    1. Intoxicating liquors <&wkey;>l37 — Possession of still and equipment sufficient to make intoxicating liquor need not be proved in prosecution for equipment for manufacture (Pen. Code 1925, art. 666).
    Under Pen. Code 1925, art. 666, state need not prove possession of still and equipment sufficient to make intoxicating liquor, but need only prove beyond reasonable doubt that accused possessed equipment for manufacturing such liquor.
    2. Intoxicating liquors &wkey;>236(!9) — Proof of possession of still or equipment for manufacturing intoxicating liquor makes prima facie case (Pen. Code 1925, art. 671).
    Under Pen. Code 1925, art. 671, proof of possession of complete still, or of equipment less than complete still, which jury believe is possessed for manufacturing intoxicating liquor, makes out prima facie case of guilt.
    3. Intoxicating liquors <&wkey;209 — Indictment for possessing still and equipment for manufacturing liquors held sufficient (Pen. Code 1925, art. 666).
    Indictment charging that accused “did then and there unlawfully possess certain still and equipment for the ' manufacture of spirituous, vinous and malt liquors capable of producing intoxication” heid sufficient, funder Pen. Code 1925, art. 666.
    4. Criminal law <&wkey;598(6) — Application for process for absent witnesses on trial day, a days after arrest, held insufficient diligence. . Application for process for absent witnesses on day of trial, 8 days after accused’s arrest, held not sufficient diligence to warrant continuance.
    5. Criminal law <&wkey;857(2) — Jurors’ argument, as to whether defendant’s children would be better off without him and that he might have been making whisky for several years, held not misconduct.
    Jurors’ argument, after agreement to convict of possessing still, etc., as to whether defendant’s children would he better off with or without him and that he might have been making whisky for several years, held not misconduct as amounting to introduction of new evidence.
    On Motion for Rehearing.
    6. Criminal law &wkey;>598(2) — Defendant need not do vain or impossible thing, before granting him continuance to take depositions, but must use reasonable diligence (Code Cr. Proc. 1925, art. 543).
    Law does not require that defendant do a vain or impossible thing, before granting him. continuance to take depositions of absent' witnesses, but does require that he use reasonable j diligence, in view of Code Or. Proc. 1925, art. 543.
    7. Criminal law <&wkey;603(ll), 954(1) — Mere averment of insufficient time to take depositions held not to show abuse of discretion in refusing continuance and new trial (Code Cr. Proc. 1925, arts. 543, 741, 742).
    Defendant having taken no preliminary steps toward taking depositions during eight days between arrest and trial, as by filing affidavit and serving interrogatories on prosecuting officer, under Code Or. Proc. 1925, arts. 741, 742, nor proved or averred impracticability of obtaining testimony, mere averment of conclusion that there was not sufficient time to take them does not warrant holding that court abused discretion, under article 543, in refusing continuance and new trial.
    . Appeal from District Court, Rains County ; J. M. Melson, Judge.
    James Rice was convicted of possessing a still and equipment for the manufacture of intoxicating liquor, and he appeals.
    Affirmed.'
    O. H. Rodes and H. D. Garrett, both of Emory, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, . for the State.
   LATTIMORE, J.

Conviction in district court of Rains county for possessing a still and equipment for the manufacture of intoxicating liquor; punishment, two years in the penitentiary.

Appellant was found in possession of two stills according to the undisputed testimony of the state, one a copper still, the other made of tin; also, he had a copper coil or worm and a barrel with four or five gallons of sour meal and a small quantity of beer in it. At his well was a keg capable of holding 12 or 15 gallons. It was in testimony that by making a hole in this keg and connecting the coil with the still and filling the keg with water, the equipment would be sufficient to make intoxicating liquor. We do not regard it as necessary to make out this offense that the state prove the accused in possession of a still and equipment sufficient to mak,e intoxicating liquor. The statute, article 666,1925 P. C., penalizes any person who possesses equipment, still, etc., for manufacturing any liquor capable of producing intoxication, or any intoxicant whatever, etc. We think it only necessary that the state show beyond a reasonable doubt that the accused was in possession of equipment for manufacturing intoxicating liquor. Article 671, 1925 P. C., provides that wherever possession, etc., is made unlawful by law, proof of possession of mash or a still or any device for manufacturing intoxicating liquor, etc., shall be prima facie evidence of guilt; but the defendant shall have the right to introduce evidence showing the legality of such-possession. Under this statute we think it the law that where one is found in possession of a complete still or of equipment less than a complete still which the jury believe is possessed for manufacturing intoxicating liquor, this makes out the prima facie case of guilt. Thomas v. State, 89 Tex. Cr. R. 106, 230 S. W. 156; Banks v. State, 88 Tex. Cr. R. 380, 227 S. W. 670. In this case appellant claimed that he had the equipment by virtue of his purchase from one Scott, who had been convicted for manufacturing intoxicating liquor and was in the penitentiary at the time of this trial; that he bought it from Scott for the purpose of selling it as junk. The court told the jury in the charge that even though they found appellant was in possession of a still or equipment for the manufacture of intoxicating liquor, yet unless they believed that he had same for the purpose of manufacturing intoxicating liquor, they should acquit him.

We think appellant’s complaint directed at the form of the indictment without merit. The indictment charged that appellant “did then and there unlawfully possess certain still and-equipment for the manufacture of spirituous, vinous and malt liquors capable of producing intoxication.” This is sufficient.

Appellant has a complaint at the refusal of an application for continuance. He was arrested on the 23d of December, and the ease was set down for trial December 31st; no application for process for any of the witnesses was made until the day of trial. This was not sufficient.

There is a bill of exceptions complaining of alleged misconduct of the jury. It is made to appear that on the first ballot the jury agreed that he was guilty, but indulged in some argument as to the penalty. The argument as to whether his children would be better' off with or without him, and that he might have been making whisky around there for several years, would not seem to us to amount to the introduction of new evidence. The jury are necessarily compelled to express their individual views in discussing their advocacy of guilty or not guilty or the' penalty they think should be assessed. We think no new evidence was brought out in the discussion, and that the matter does not amount to misconduct.

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

On Motion for Rehearing.

MORROW, P. J.

Appellant insists that there was error in refusing to grant his motion for a continuance. From the bill of exceptions it appears that the appellant was indicted on the 22d day of December and arrested on the following day; that he was tried on the 31st of December; and that court adjourned on January 2d.

Appellant avers that there was not sufficient time between the date of his arrest and the time for the expiration of the term of court within which to take the depositions; that Scott was confined at the State Farm at Roseberg. These averments were meager. The law of diligence did not demand that the appellant do a vain thing nor perform the impossible. See Copeland v. State, 94 Tex. Cr. R. 167, 249 S. W. 1049. It did require that he use reasonable diligence. See article 543, C. C. P., 1925; also, Vernon’s Ann. Tex. C. C. P., 1925, vol. 1, pp. 426, 431, and authorities collated; Jordan v. State, 96 Tex. Cr. R. 70, 255 S. W. 735; Smith v. State, 97 Tex. Cr. R. 6, 260 S. W. 602; Payne v. State, 84 Tex. Cr. R. 2, 204 S. W. 765. The distance and means of communication between Roseberg and the place of trial are not stated. If the appellant had filed the proper affidavit demanded by article 741, C. C. P., or had prepared, filed, and had served interrogatories upon the prosecuting officer as required by article 742, C. C. P., his position in seeking a continuance would certainly have been stronger. So far as the averments of the motion are concerned, such efforts might have resulted in securing the depositions. There were at least eight days intervening within which nothing was done. Five of them would suffice for service, if the prosecuting officer did not at an earlier date file cross-interrogatories. A matter quite similar was before the court in Hornsby’s Case, 91 Tex. Cr. R. 167, 237 S. W. 940. It was there held in substance that to be in a position to demand a continuance in order to obtain depositions the accused should have availed himself of such means as were at hand, “and if after taking such steps he failed, he would at least have been in a position to insist that he had been diligent in his efforts to obtain the testimony.” So, in the present case, the appellant having taken no preliminary steps towards taking the depositions and failing by proof or averments to show that it would not have been practicable to obtain the testimony, the mere averment of conclusion that there was not sufficient time would not warrant this court in declaring that in refusing the continuance and the motion for new trial there was an abuse of discretion by the trial court.

The motion for rehearing is overruled. 
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