
    WOODWARD v. STATE.
    (No. 8203.)
    (Court of Criminal Appeals of Texas.
    March 26, 1924.)
    1. Intoxicating liquors <@=^>236(19) — Evidence held insufficient to sustain conviction for ■ manufacturing.
    In a prosecution for manufacturing liquor, wholly circumstantial evidence, when coupled with defendant’s explanations, %elé not to sustain conviction.
    2. Criminal law <®=>l 120(3) — Bill of exceptions not stating what the inadmissible statements were was incomplete.
    A bill of exceptions, complaining of receipt in evidence of defendant’s declarations, without stating what the declarations were, was incomplete, precluding determination of whether they were admissible as res gestse.
    <§=s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Brazos County; W. C. Davis, Judge.
    Malvin Woodward was convicted of unlawful manufacture of intoxicating liquor, and he appeals.
    Reversed and remanded.
    S. -W. Dean, of Navasota, for appellant.
    Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is the unlawful manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

The sheriff and other officers, possessed of a proper warrant, searched the home of the appellant. In the dwelling were some bottles containing a fluid, which, at the tiiqe of the finding, as shown by the state, appellant declared was wine made for medicinal purposes. The-officer declared it was “chock beer,” but whether intoxicating was not revealed. Appellant’s horde was on a farm. In a cotton patch, not under the control of appellant and quite a distance from his dwelling, was found a copper boiler with a screw-in top, on which a pipe or worm might have been attached. No worm was discovered, however. In the boiler jvas some liquid, probably mash. The bottom of the boiler was smoked. The day was warm and the ma,sh or mixture smelled sour. It was exposed to the sun and was warm.. In the hog trough there was a mixture having a sour smell, and there were circumstances indicating that it had been poured from a barrel. The kitchen floor was wet, apparently having been' scoured. The kitchen fire was burning at about 4 o’clock in the afternoon. In some cotton in a cotton house on the premises was a half pint bottle almost full of whisky. When the boiler was found, appellant claimed that it had been left there by an old- German. Hie declared that the sour-smelling stuff at his hogpen was feed for the hogs made of musty meal, purchased by him from a merchant nearby whom he named. When the bottle of whisky was found, appellant declared he had gotten it from a neighbor, whom he named. Both the neighbor and the merchant from whom appellant claimed the purchases were made were available, but were not used as witnesses. The smoke on the boiler was not made from setting on a stove; the kitchen-fire was explained as an incident to scrubbing the floor. The exculpatory declarations mentioned aboye were apparently res gestee, and were introduced in evidence by the state. That is to say, the state proved that, at the time the whisky was found, he named the person from whom he got it. The declarations explaining the- presence of the boiler, the nature of the sour stuff in the hog trough, the character and purpose of the articles in the bottles found in the house also came from the state witnesses. Appellant and' members of his family testified that the articles found were not designed for making whisky.

The evidence being wholly circumstantial •is not deemed sufficient to sustain the conviction. The appellant’s explanation of the presence of the whisky was not disproved, though he named the witness by whom the state coujd have discredited it, if untrue. The same condition affects the declaration touching the meal purchased by him. The boiler was remote from his home and was one of the several parts of a still. The other parts necessary to complete the apparatus for making whisky were not found. The state’s evidence unexplained does not exclude the hypothesis of innocence, and, taken in connection with the declarations proved by the state, compatible with innocence and explanatory of the suspicious circumstances, the evidence as a whole is deemed inadequate to meet the requirements of the law of circumstantial evidence.

The bill of exceptions complaining of the receipt in evidence of the declarations of appellant is incomplete in that it does not state wliat the declarations were. At the time they were made, he seems to have been in custody. Whether they were all res gestae we cannot, in view of the defects in the bill, undertake to decide. We are inclined to the view, however, that the evidence received was proper.

The judgment is reversed and the cause remanded.  