
    CALLOWAY v. STATE.
    (No. 8630.)
    (Court of Criminal Appeals of Texas.
    Feb. 18, 1925.
    Rehearing Denied March 18, 1925.)
    1. Criminal law <@=>198 — Motion to dismiss on ground of prior conviction held properly overruled.
    In prosecution for manufacturing mash, defendant’s motion, denominated “a motion to dismiss” on ground of prior conviction for possession and transportation of still, wherein it appeared that at different time and place defendant had been found in possession of mash, if properly before court, held correctly overruled; offense charged being separate and' distinct.
    2. Criminal law <@=>371 (10) — In prosecution for manufacture of mash, proof of defendant’s possession of still held admissible.
    Element of offense of possession, transportation, etc., of mash, is purpose of manufac-taring intoxicating liquor; and, in prosecution fbr manufacturing mash, evidence that defendant on day of alleged offense was found in possession of still in another place was admissible.
    : Appeal from District Court, Kaufman County; Joel R. Bond, Judge.
    B. C. Calloway was convicted of manufacturing mash from which spirituous, vinous, and intoxicating liquors were to be made, and he appeals.
    Affirmed.
    Wynne & Wynne, of Kaufman, for appellant.
    . Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Kaufman county of manufacturing mash from which spirituous, vinous, and intoxicating liquors were to be made, and his punishment fixed at two years in the penitentiary.

The facts in evidence seem ample to support the conviction and need not be stated further than may be necessary to make clear our announcement of the legaT principles involved.

Appellant filed a plea of former acquittal, alleging that in cause No. 8640 he had been placed on trial under an indictment charging in three counts possession of a still (without describing the parts), transportation of a still (without description of the parts), and possession of equipment and a still (describing the parts), and that on the trial of said charges he had been acquitted. The learned trial judge made an order overruling said plea. There appears no bill of exceptions complaining that such plea was not submitted to the jury. Appellant also made what is denominated “a motion to dismiss,” alleging that in cause No. 8640 (containing the .-three same counts above referred to) he had been tried and convicted. The trial court overruled this motion. There are three bills of exception, the first of which was taken to the refusal of .the motion to dismiss. We are in doubt as to the correctness of such practice as the filing of such motion to dismiss, which was addressed to the court. However, if such practice be proper, the court was called on to decide the questions thus presented. It appears that a complete still was found in appellant’s car, which finding formed the basis of the prosecution for the possession and transportation of the still. It' also appears that at a different time and place eight barrels of mash belonging to appellant were found, and this transaction was made the basis of the prosecution for the possession and manufacture of said mash. Appellant made a written confession admitting that he had the still and that he purposed making whisky on same out of said mash. Not only do these things show two entirely separate and distinct offenses, but in support of the motion to dismiss it was not shown that the judgment in cause No. 8640 was a final judgment, and no effort seems to have been made to submit the matters involved to the jury. If called on to act on such a mdtion, we think the actipn of the trial court in overruling it entirely correct.

No error appears in the complaint of the reception of evidence showing- that on the same day on which officers found the eight barrels of mash with which appellant was shown to have been connected,. he was found in Terrell, some 414 miles from where the mash was located, and that in Terrell he had a still in his car. An element of the offense of possession, transportation, etc., of mash, is that it was made, etc., for the purpose of manufacturing intoxicating liquor. Appellant’s possession of a still in the same neighborhood, and about the same time as that of the mash, would be a circumstance tending to make plain his purpose and intention in regard to the mash.

We do not comprehend the third bill, which presents objection to the introduction of testimony of the finding of the two wagons with the barrels of mash in them on the same day appellant was found with the still in his car. The offense here on trial was the making of said mash. The finding of same and the showing of appellant’s connection therewith were the material facts involved in the instant prosecution.

No error appearing, the judgment of the trial court will be affirmed.

On Motion for Rehearing.

Appellant insists that we erred in what we said, and also in that we did not say say anything about his third bill of exceptions. We are satisfied that what we said was correct, and we did not discuss said third bill of exceptions because of our belief that it was taken under a misapprehension. It is now insisted that we should discuss it.

Appellant was on trial for manufacturing mash. Bill No. 8 recites that certain witnesses, having sworn that they found appellant in a car with a still in boxes, were also asked if they found anything in a wagon about 4% miles from there on Sunday morning, the same day the still was found in appellant’s car. This was objected to for the reason that appellant was being tried for transporting a still and equipment, etc., and that to prove that he was seen that same morning -4% miles away with mash in barrels in a wagon had no bearing on the issue; that the court overruled the objection and permitted Mr. Carter to swear that he found two barrels of mash in the wagon on that day and that appellant was trying to drive said wagon down the road, etc. The terms of the bill manifest the fact that it has no application, and we are still of opinion that it was taken under a misapprehension. It manifests no error.

The motion for rehearing will be overruled.  