
    HENSON v. STATE.
    (No. 10769.)
    Court of Criminal Appeals of Texas.
    March 23, 1927.
    Rehearing Denied May 18, 1927.
    1. Criminal law <&wkey;978 — Special law providing that persons over 25,- convicted of liquor violation, cannot have suspended sentence held to take precedence .over general law (Code Cr. Proc. 1925, art. 776; Pen. Code 1925, art. 689, arts. 666-694).
    Pen. Code 1925, art. 689, providing that no person over 25 years of age, convicted of violating the liquor laws, is entitled to suspended sentence, held a special law, applicable only to persons convicted of violating liquor statutes (Pen. Code 1925, arts. 666-694), taking precedence over Code Pr. Proc. 19-25, art. 776, providing that a person convicted of any felony except certain specified ones, whose punishment does not exceed five years, is entitled to suspended-sentence.
    2. Intoxicating liquors <&wkey;239(4) — Refusing-charge to acquit if defendant was manufacturing liquor for medicinal, “or other purposes,” held proper.
    Refusing requested charge, in prosecution for manufacturing intoxicating liquor, directing acquittal if defendant was manufacturing liquor for medicinal purposes, “or other purposes,” held proper, since this might have authorized jury to acquit defendant, although he was making whisky for sale.
    3. Criminal law &wkey;>364(4) — Evidence that defendant was intoxicated when arrested for manufacturing liquor held admissible as part of res gestae.
    Testimony of officer, who arrested defendant for manufacturing intoxicating liquor, that at the time of the arrest defendant was intoxicated, held admissible as part of the res gestae.
    
      4. Criminal law &wkey;l 144(12) — Statement of defendant at time of arrest for manufacturing liquor is presumed properly admitted, where bill does not show it was not res gestee.
    Statement of defendant at time of arrest for manufacturing intoxicating liquor, reflecting upon his guilt, is presumed properly admitted, where bill of exceptions fails to show that the statement was not res gestae.
    5. Intoxicating liquors <&wkey;>209 — Indictment, charging that defendant “did unlawfully manufacture intoxicating liquor and malt liquor and medicated bitters capable of producing intoxication,” held sufficient.
    An indictment, charging that the defendant “did then and there unlawfully manufacture spirituous, vinous, .and intoxicating liquor and malt liquor and medicated bitters capable of producing intoxication,” held sufficient to charge offense of unlawfully manufacturing intoxicating liquor.
    6. Criminal law <&wkey;87l(2) — Foreman’s signature on verdict, signed after word “foreman,” held not to render verdict invalid (Code Cr. Proe. 1925, art. 687).
    Under Code Or. Proc. 1925, art. 687, providing that in felony cases not less than 12 jurors can render a verdict which must be concurred in by each juror and signed by the foreman, the fact that the foreman signs his name on the verdict after the word “foreman” held not to render such verdict' invalid.
    On Motion for Rehearing.
    7. Criminal Iaw&wkey;>829(!) — Requested instruction, given in main charge, held properly refused.
    Where instruction offered, in so far as it was correct, was covered by the main charge, its refusal held proper.
    Commissioners’ Decision.
    Appeal from District Court, Oass County; Hugh Carney, Judge.
    W. H. Henson was convicted of unlawfully manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    King, Mahaffey & Wheeler, of Texarkana, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

The appellant was convicted of unlawfully manufacturing intoxicating liquor, and his punishment assessed at one year in the penitentiary.

This is the second appeal of this case to this court. The first appeal will be found in 101 Tex. Cr. R. 617, 276 S. W. 926, where a sufficient statement of the facts is given.

The record contains 5 bills of exception. Bill No. 1 complains of the refusal of the court to submit to the jury appellant’s application for a suspended sentence, the court’s refusal being based upon the fact that the appellant, at the time of the alleged offense, was about 60 years of age, and consequently did not come within the provisions of article 689, P. C., which provides that no person over 25 years of age who is convicted of violating the liquor laws (chapter 7, P. C.) is entitled to the benefits of the suspended sentence act. It is the contention of the appellant that article 776, C. C. P., to the effect that a person convicted of any felony except murder, perjury, burglary of a private residence at night, etc., whose punishment does not exceed five years, etc., is entitled to the benefits of the suspended sentence law, supersedes, and, in effect, repeals article 689, P. C. We are not in accord with this contention'and) are clearly of the opinion that article 689, P. C., which limits applicants for a suspended sentence upon conviction of violating the liquor laws to persons under the age of 25 years, is a special law applicable only to chapter 7, P. C. and to persons convicted of violating the liquor statutes, while article 776, C. C. P. is a general law applying to all felony convictions except those enumerated therein, and that in whisky cases article 689, P. C. takes precedence over said article 776, C. C. P.

Bill of exception No. 2 complains of the refusal of the court to give in charge to the jury appellant’s special charge No. 2 to the effect that, if the jury believed from the evidence that appellant was manufacturing the alleged liquor for medicinal purposes, “or other purposes,” to find him not guilty. We are of the opinion that the court committed no error in refusing to give this special charge. The only defense interposed by appellant was that he was making the whisky for medicinal purposes. This special charge, in embracing the phrase, “or other purposes,” would have authorized the jury to return a verdict of not guilty, although they might have believed that appellant was making the whisky for the purpose of sale.

Bill No. 3 complains of the action of the court in permitting the officer, Albright, to testify, over appellant’s objection, that the appellant, when arrested, was in a state of intoxication. This bill presents no error, since the testimony objected to was part of the res gestae and clearly admissible.. Upon the former appeal, tve held that the admission of this evidence was not error. Also see Edelen v. State, 103 Tex. Cr. R. 562, 281 S. W. 1078.

In bill No. 4 complaint is made to the action of the court in permitting the state to prove by the witness Albright that the appellant remarked to the officers arresting him, “Well, boys, you have caught me with my pants down.” This bill, as presented, fails to show that this statement was not res gestae, and in the absence of such showing the presumption is that the court ruled correctly thereon. Edelen v. State, 103 Tex. Cr. R. 562, 281 S. W. 1078.

Bill No. 5 complains of tlie refusal of the court to sustain appellant’s motion to arrest the judgment herein, first, because the indictment fails to allege that the appellant manufactured spirituous, vinous, intoxicating, or malt liquors, etc., and, second, because the verdict is unintelligible. We are of the opinion that both of these contentions are untenable. The indictment charges that the appellant “did then and there unlawfully manufacture spirituous, vinous, and intoxicating liquor and malt liquor and medicated bitters capable of producing intoxication,” etc'. We think this is amply sufficient.

The verdict of the jury is as follows: •

“We, the jury, find the defendant, W. H. Henson, guilty as charged by indictment, and assess his punishment at confinement .for one year in the penitentiary.
■“Foreman J. O. Logwood.”

The fact that the word “foreman” precedes the name “J. O. Logwood” does not, in our opinion, render said verdict invalid. Article 687, C. C. P. states that in felony cases “not less than 12 jurors can render * * * a verdict. * * * It must be concurred in by each juror and signed by the foreman.” This court has held that it is not absolutely necessary for the verdict to be signed under this statute. Yarber v. State (Tex. Cr. App.) 24 S. W. 645; Mackey v. State, 68 Tex. Cr. R. 539, 151 S. W. 802. It will be observed that the statute does not state how or where the verdict shall be signed, whether before or after the word, “foreman,” .and we take it to be immaterial whether the title or the signature comes first. This identical issue has been decided in Missouri against the contention of appellant. State v. Lynes, 194 Mo. App. 184, 185 S. W. 535; State v. Jackson (Mo. Sup.) 253 S. W. 735.

Finding no error in the record, after a careful examination thereof, we are of the opinion that the judgment of the trial court should be affirmed, and it is accordingly so ordered.

PER OURIAM. 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.

On Motion for Rehearing.

LATTIMORB, J.

Appellant renews his claim that the trial court erred in refusing to give his special charge No. 2. The bill of exceptions complaining of the refusal of this charge sets out that same- was refused because it was covered by the main charge, and omits the word “solely.” In the main charge the jury were told that, if they believed appellant manufactured intoxicating liquor solely for medicinal purposes, or if they had a reasonable doubt thereof, they should find him not guilty. The special charge referred to sought to have the jury told that, if they believed from the evidence that appellant manufactured the liquor alleged, for medicinal purposes, “or if you have a reasonable doubt as to whether he was manufacturing it for medicinal purposes, or for other purposes,” they should find him not guilty. We are of opinion that the law of the case was covered by the main charge, and that the special charge mentioned added nothing in legal effect to the main charge, and, as stated in our original opinion, said special charge is open to the objection that it was liable to be construed by the jury as an instruction to acquit, even though the jury might have believed that appellant was making the whisky for other than medicinal purposes. The main charge submitted the issue in form that has been approved many times and which appears to be plain and easily understood. The validity vel non of the special charge depends upon a grammatical construction, which, in the opinion of some, might be as contended for by appellant, and in the opinion of others, might bo of a different effect. If we had any doubt as to the jury’s understanding of the charge as given, our view might be different.

Appellant again insists that because the officers who arrested him stated that at the time he was under the influence of liquor, this was not provable as part of the res gestee. Appellant appears to be of the opinion that the testimony of the officers related to a time subsequent to his arrest. The officers testified that they went up to the still with drawn ifistols; that appellant and three other men were there; and that, when they told said parties to stick up their- hands, appellant said, “Well boys, you have caught me and-caught me with my breeches down.” The officer testified, “He was under the influence of whisky at that time.” We have no doubt of this being part of the res gestee and provable as such.

The motion for rehearing will be overruled.

MORROW, P. J., absent. 
      
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