
    SWIFT v. STATE.
    (No. 11706.)
    Oourt of Criminal Appeals of Texas.
    May 30, 1928.
    1. Intoxicating liquors <&wkey;239(l) — Submission of guilt, as principal, of defendant discovered at still, was not error under evidence, in prosecution for possessing liquor for sale. '
    In prosecution for possessing liquor for sale, in which evidence showed that defendant and another were discovered near still, and that defendant seemed to be doing something in connection with the whisky or the still, court did not err in submitting to jury question of defendant’s guilt as principal.
    2. Criminal law <&wkey;>720(10) — District attorney’s argument that failure of defendant accused of possessing liquor to explain presence at still when arrested sufficiently proved guilt held not improper.
    Argument of district attorney in prosecution for possessing liquor for sale, that defendant’s failure to explain his presence at still when arrested was sufficient evidence of his guilt, where based on facts in evidence, was not improper.
    3. Intoxicating liquors <&wkey;236(7) — Evidence held to sustain conviction for possessing intoxicating liquor for purposes of sale.
    In prosecution for possessing intoxicating liquor for purposes of sale, evidence which showed unexplained presence of defendant at still when arrested held sufficient to sustain conviction.
    Appeal from District Oourt, Burnet County; J. H. McLean, Judge.
    Joe Swift wás convicted of possessing intoxicating liquor for purposes of sale, and he appeals.
    Affirmed.
    A. L. Ourtis, of Belton, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for possessing intoxicating liquor for purposes of sale; punishment, one year in the penitentiary.

There are three bills of exeeptiori in the record. The first complains of the refusal of ■a special charge asking that the jury be instructed to) acquit. We are of opinion tbis was properly refused.

The second bill complains, of tbe fact that the trial court instructed the jury upon the law of principals. We are unable to agree with this contention. Appellant and another were discovered at a place where there was a certain still together with a quantity of mash and whisky. Appellant seemed to be doing something in connection with the whisky or the still.' He offered no sort of ■explanation either at the time of his arrest •or by way of (testimony upon this trial.

The third bill of exceptions complains •of certain argument of the district attorney to the effect that the fact that appellant made no statement or explanation of his presence •at the still when arrested by the officers was deemed' by the state’s attorney sufficient evidence of his guilt. We are not willing to ¡hold such argument of a reversible character. It was merely an expression of the opinion of the state’s attorney as to the effect of •certain facts which were in testimony before the jury.

Appellant assails the sufficiency of the testimony. There is no question of the fact that appellant was at a place down upon a ravine in a remote mountainous section, where there were 29 full barrels of mash, a thoroughly equipped still, together with a quantity of whisky already manufactured. When observed by an officer, appellant was partly hidden from view, but he was close to the still, and his body was moving up and down, and one of the officers said he had a wrench in his hand. No testimony was offered by appellant to explain his connection with the still or denying his full complicity with his codefendant in its operation and in the possession of the mash and liquor there found. Under these facts we are unwilling to say the jury was not justified in finding appellant guilty.

No error appearing, the judgment will be affirmed.  