
    TARVER v. STATE.
    (No. 9669.)
    (Court of Criminal Appeals of Texas.
    March 3, 1926.
    Rehearing Denied April 7, 1926.)
    1. Intoxicating liquors <&wkey;239(2) — In prosecution for possessing equipment for manufacturing liquor, refusal to instruct acquittal if jury had reasonable doubt whether still was placed where found by parties other than accused was not reversible error, where no testimony shewed any other had any connection therewith.
    In prosecution for possessing equipment for manufacturing intoxicating liquor, refusal to instruct to acquit accused, if jury had reasonable doubt whether still was placed where it was found by parties other than accused, was not reversible error, where no testimony showed any other parties than accused had ever been seen around the still, had any connection therewith, or had placed it where found, save accused’s denial that he put it there.
    2. Criminal law <§=o364(4) — In proseoution for possessing equipment for manufacturing intoxicating liquor, statements of accused to officers, where still was found, that “that can is the only partner I have,” and that a certain container had been given him, were part of res gestee.
    In prosecution for possessing equipment for manufacturing intoxicating liquor, statements of accused to officers when arresting him, where still was found, that “that can is the only partner I have,” and that a container of peculiar pattern had been given him by his .wife’s grandmother, were part of res gestse.
    3. Criminal law <&wkey;4!9, 420(i’0) — In prosecution for possessing equipment for manufacturing intoxicating liquor, testimony as to what two persons witness saw near still site said at about time of arrest was hearsay and inadmissible.
    In prosecution for possessing equipment for manufacturing intoxicating liquor, testimony of witness as to what two persons he saw in the woods where the still was found about the time of the arrest said to Mm was hearsay and inadmissible.
    
      On Motion'for Rehearing.
    4. Criminal law <&wkey;l 159(1).
    Appellate court only determines whether evidence justifies jury’s conclusions on disputed fact issues.
    Appeal from District'Court, Hardin County ; J. L. Manry, Judge.
    A. G. Tarver was convicted of unlawful possession of equipment for the manufacture of intoxicating liquor, and he appeals.
    Affirmed.
    Singleton & Bevil, of Kountze, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   LATTIMORE, J.

Conviction was had in district court of Hardin county for the unlawful possession of equipment for the manufacture of intoxicating liquor; punishment fixed at one year in the penitentiary.

Two officers testified that they saw appellant on what was called Deserters’ Island, at a place where the woods were very thick. They had found three barrels of mash and near same indications that fires had been made and apparently whisky “cooked off.” From the looks of the mash, they decided same would be ready for cooking the following Monday or Tuesday. On Monday they went back and watched the location. About daylight on Tuesday they heard .two gunshots, the sound coming from different, directions, but fired pretty close together. Presently two men appeared about five minutes apart, one of whom they said was appellant. Appellant had with him a still. The officers further said they wanted to watch until the parties got the still in operation.' They testified that a little later they could hear some one working “down there,” and they walked down, and appellant was coming from the direction of the mash barrels with two buckets of mash ; that he set same down and started to pour one into the still when one of the officers told him to stick up his hands. The still was 80 or 40 feet from where the barrels of mash were located. One of them asked appellant where his partner was, and he replied (pointing) “That can is the only partner I have.” The officers further testified that they proceeded to break up" the various articles; and, as they were about to break a container of peculiar pattern, appellant asked them not to break it, as it had been given to him by his wife’s grandmother.' The still was about one-third full of mash, and, according to the state’s testimony, showed to have been' recently used. Appellant testified and denied having taken the still to the place, also denied having the buckets of mash in his hands, and said that he found said still while squirrel hunting. He also said he did not tell the officers that the container in question belonged to him, and also said he did not tell them that the can was his only partner.

Bills of exception Nos. X and 2 complain of the refusal of special charges, neither of which was correct. Both sought to have the jury told that they should acquit if they believed that 'the still in question was placed where it was found, by parties other than appellant, or, if they had a reasonable doubt of such fact, they should acquit. There is no testimony showing that any other parties had ever been seen around said still, or had .any connection therewith, or that other parties placed it where found save appellant’s denial that he put same there. The fact that other men had been camped on said island for some weeks, and that they left about the time of appellant’s arrest, was shown by the defensive testimony, but seems of no weight supporting the proposition above advanced. There was nothing calling for the submission of such theory of acquittal under the positive testimony of the officers that the still was not at or near the mash barrels when same was first found by them, and further that on the morning of his arrest appellant was at the still and engaged in carrying mash from said barrels to the still and of pouring same into the still when they arrested him. The question as to who put the still where it was would seem in no sense determinative of apv pellant’s guilt.

The statements made by appellant to the officers relative to the can and container seem clearly part of the res gestae. ' ’

The testimony of defense witness.Clark, as to what was said to him by two parties whom he saw in the woods at or about the' time - in question,, was hearsay and inadmissible. Freeman v. State, 249 S. W. 466, 93 Tex. Cr. R. 436; Culver v. State, 249 S. W. 853, 94 Tex. Cr. R. 103; Stone v. State, 265 S. W. 900, 98 Tex. Cr. R. 364; Bates v. State, 271 S. W. 389, 99 Tex. Cr. R. 647.

Finding no error in the record, the judg-iment will be affirmed.

On Motion for Rehearing.

It appearing from the record without dispute that, about daylight on the day of appellant’s arrest, officers watching in the vicinity of three barrels of mash which they had discovered, heard two shots apparently about a mile and a half apart, and that some time afterward they saw a man approaching said locality, and then about 5 minutes later saw-appellant coming toward said place carrying a gun, and that presently he went back the way he came, and that an hour or so later he appeared bringing a still to said locality, and that he went with same in the direction of the barrels of mash, and that* presently, from in the immediate vicinity of said bar-reís, the officers heard noises as of knocking and working around, and that some time after they went down (to the immediate scene and found appellant with two buckets of mash or with one bucket of mash which he was about to empty into the still, coupled with the other facts in testimony and discussed in our former opinion, would seem to •render unimportant a statement in. said opinion objected to as erroneous, viz. the inference that appellant had the still with him when he first appeared. If appellant was the man who brought the still to the place, and if he was at it, engaged in operations intimately connected with its use and the manufacture of the liquor, it would be immaterial at what time he brought the still to the scene. Both officers testified,, describing appellant’s appearance, his clothes, etc., at the time he came bringing the still, and Mr. Bryant said: “I identified the man carrying the still. * * * It was Mr. Tarver. I am positive of that fact. I know.

We'did not discuss the testimony of the ■defense witnesses, for -the reason that same only operated to contradict that of the state, and, the jury having solved the disputed fact issues against appellant, we were only concerned in determining whether there was evidence before them which justified their conclusion. It is shown that appellant lived about three-quarters of a mile in a direct line from the scene of the operation in question, and, when he first appeared carrying the gun, and went away and then returned with the still, he went and came in the direction of his home. We have' carefully considered the entire testimony in the light of appellant’s motion, but are unable to agree with his contentions, and believe the conclusion arrived at in the original opinion was correct.

The motion for rehearing is overruled. 
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