
    ROARK v. STATE.
    (No. 8638.)
    (Court of Criminal Appeals of Texas.
    Oct. 7, 1925.)
    On Motion for Rehearing.
    I. Criminal law <§=5369(6) — Proof of extraneous offenses of manufacturing liquor other than offenses already proved held erroneously ' admitted.
    In a prosecution for manufacturing intoxicating liquor where state introduced testimony sufficient to show that defendant was seen at still manufacturing whisky at a certain time charged in indictment, it was error for court to permit proof by the state that accused was seen at various other times and places operating still and manufacturing liquor.
    2. Criminal law <§=5365(1), 369(15), 371(1), 372(1) — Proof of extraneous crimes, which do not show intent, identity, or system, and not part of res gestae, not admissible.
    Defendant should he tried on the merits of ease, and proof of extraneous crimes, which do not go to show intent, identity, or system, or which is not a part of res gestee, is not admissible if it could only show that defendant was a criminal generally.
    3. Criminal law <§=5788(2) — Evidence held to show that witness was not accomplice.
    In a prosecution for manufacturing intoxicating liquor, evidence held, to show that witness was not an accomplice, and no instruction thereon required.
    4. Criminal law <§=5814(17) — Refusal to charge on circumstantial evidence held not error.
    In a prosecution for manufacturing liquor, where state’s testimony, if true, showed that accused was seen at still actually manufacturing intoxicating liquor at time charged in indictment, held., it was not error for court to refuse to charge on circumstantial evidence.
    Commissioners’ Decision.
    Appeal from District Court, Bosque County; Irwin T. Ward, Judge.
    Bryant Roark was convicted of manufacturing intoxicating liquor, and he appeals.
    Reversed and remanded.
    E. T. Adams, of Glen Rose, and W. R. Barker, of Fort Worth, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   On Motion for Rehearing.

BERRY, J.

This case was affirmed at a former term of this court, and is now before us on appellant’s motion for rehearing. The original opinion was written by the writer, and he feels constrained in candor to say that a mature consideration of appellant’s motion for rehearing convinces him that he utterly misconceived the law on the controlling question in the case, to wit, on the question of proof of extraneous crimes, and that the original opinion is therefore clearly'wrong. This being true, the publication of the original opinion could serve no useful purpose, and it is therefore withdrawn.

The appellant was convicted in the district court of Bosque county for the offense of manufacturing liquor, and his punishment assessed at confinement in the penitentiary for a term of three years.

The state introduced testimony which is sufficient to show that the appellant was seen at a still manufacturing whisky about the 1st of May, 1923. The statement of facts showed that only two witnesses testified in the case, and each of these witnesses were called by the state. The appellant introduced no testimony.

After proving by tbe state witnesses that the appellant was seen manufacturing whisky somewhere about the 1st of May, 1923, and while the state was presenting its case in chief, the court permitted proof to be offered by the state that appellant was seen at various other times and places operating a still and manufacturing whisky.

■ Appellant’s bills of exception, from 1 to 6, inclusive, show that this testimony was objected to as being irrelevant and incompetent, and an effort on the part of the state to prove other and different transactions than the one already proved. As above stated, no proof was offered by the appellant, and the state’s testimony, if believed, left no question as to the intent or identity of the defendant, and no question of system, and no suggestion that .this testimony was a part of the res gestee of the offense for which he was being tried is suggeste'd by this record. Under these conditions, we are forced to hold that proof of other and extraneous crimes was not permissible in this case; and, as more than the minimum punishment was assessed, we cannot say that such error was harmless.'

The rule has been well stated as follows:

“The defendant should be tried on the merits of each case and proof of extraneous crimes which do not go to show intent, identity or system or which is not a part of the res geste, is not admissible if it could only show that defendant was a criminal generally.”

See Branch’s P. O. p. 99, for full collation of authorities sustaining this rule.

We think this case is clearly governed by the above rule in view of the fact that no issue was made on the question of system intent or identity, and if the state’s testimony was to be believed, a perfect case was made against the appellant without resorting to proof of extraneous crimes.

By bill of.exception No. 10 appellant complains at the action of the court in refusing to charge that the witness Million is an accomplice. We have examined this witness’ testimony very carefully, and fail to find anything in either his testimony or any other testimony introduced in the record that even suggests that he is an accomplice. Chandler v. State, 89 Tex. Cr. R. 599, 232 S. W. 337; Newton v. State, 92 Tex. Cr. R. 335, 238 S. W. 649.

The state’s testimony, if true,' shows that the appellant was seen at the still actually manufacturing whisky at or about the time charged in the indictment, and we therefore hold that' the court did not err in refusing to charge on.circumstantial evidence in this case. See section 1874, Branch’s P. O., for authorities on this question.

Because of the court’s error in admitting proof of extraneous crimes, it is our opinion the appellant’s motion for rehearing should be granted, and ■ that the judgment should be reversed and the cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court 
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