
    HAMILTON v. STATE.
    (No. 9734.)
    (Court of Criminal Appeals of Texas.
    Jan. 13, 1926.)
    1. Criminal law <&wkey;823( I) — Accused held not injured by confusion of counts in opening statement of charge, which were correctly referred to in remainder of charge.
    Where trial court, in opening statement of charge, confused two counts contained in indictment, but in remainder of charge referred to counts correctly, held, that accused was not injured thereby.
    2. Intoxicating liquors <&wkey;>236(l9) — Evidence held sufficient to support conviction for manufacturing intoxicating liquor.
    Evidence held sufficient to support conviction for manufacturing intoxicating liquor.
    3. Criminal law <§=>1159(5) — Contention that verdict is excessive cannot be sustained on showing that maximum penalty was given.
    Contention that verdict is excessive, showing prejudice of jury, cannot be sustained, where only showing is that jury gave accused the maximum penalty.
    Appeal from District Court, Guadalupe County; Lester Holt, Judge.
    Jim Hamilton was convicted of manufacturing intoxicating liquor, and be appeals.
    Affirmed.
    P. E. Campbell, of Seguin, 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.

Appellant was convicted in the district court of Guadalupe county for manufacturing intoxicating liquor and given five years in the penitentiary, from which he appeals.

Officers went to appellant’s place with a search warrant, and found him sitting in the yard. He made no objection to their searching the premises. The officers found a little house located some 30 yards from the dwelling to be locked; when appealed to about it appellant said he had no key. The officers broke tbe lock and found in tbe house what they called a “distill” having a .copper can and worm. They also found two jugs of whisky, one full and the other nearly so, a bottle with about a pint of whisky in it; also two barrels, one nearly full of mash and the other containing a smaller quantity of same.

Appellant admitted his possession of the premises, including the little house, but denied he had made the whisky. He said that a few days prior to the officers coming he had bought the outfit, including tjie whisky, for $22. He said he intended to drink the whis-ky and sell the rest of the outfit. No exception was takbn either to the charge of the court, or to the reception or rejection of any testimony.

Some complaint is here made that in the opening statement of his charge the learned trial court confused the two counts contained in' the indictment, and stated that in count No. 1 appellant was charged with manufacturing, and in count No. 2 with possessing, intoxicating liquor, when the opposite was true of said counts.

While appellant is correct in this contention, in all the remainder of the charge the counts are correctly referred to, and we conceive it impossible for appellant to have been injured by tbe matter thus complained of. The' above embraces proposition No. 1 advanced in appellant’s brief.

Tbe second contention is that tbe evidence is not sufficient to support a conviction for manufacturing intoxicating liquor. We are unable to agree with this conclusion. The court submitted this count to the jury under the law of circumstantial evidence. The officers who found the apparatus in appellant’s possession, together with a quantity of both the raw material and the finished product, were not very familia? with the process of making whisky, apparently, but no defensive testimony áppeared save that of appellant himself, who denied guilt-of manufacture. We deem the jury’s verdict to find sufficient support in the testimony. No obligation rests on them to accept the testimony of' the accused.

The only other contention is that the verdict is excessive. No showing in such regard appears save that the jury gave appellant the maximum penalty, which alone is urged as a reason for believing that there was'prejudice on the part of the jury.

Not being able to agree with appellant’s contentions, and finding no error in, the record, the judgment will be affirmed. 
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