
    LITTLETON v. STATE.
    (No. 11708.)
    Court of Criminal Appeals of Texas.
    May 30, 1928.
    1. Criminal law <&wkey;>784(I) — Where main fact is proved as matter of inference from other facts, case rests wholly on circumstantial evidence, requiring circumstantial evidence charge.
    Where main fact is proved as matter of inference from other facts in evidence, case rests wholly, in legal sense, upon circumstantial evidence, requiring charge on law of circumstantial evidence.
    2. Criminal law &wkey;8l4(l7) — In prosecution for manufacturing liquor, where evidence showed defendant was capping beer bottles, court should have charged on law of circumstantial evidence.
    In prosecution for manufacturing liquor, evidence regarding defendant’s act of capping beer bottles, standing alone, was not sufficient to relieve court of duty of charging on law of circumstantial evidence.
    Commissioners’ Decision.
    Appeal from District Court, Eastland County; Elzo Been, Judge.
    Boss Littleton was convicted of manufacturing liquor, and he appeals.
    Reversed and remanded.
    L. H. Flewellen, of Ranger, for appellant.
    ■ A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is manufacturing spirituous, vinous, and malt liquor containing in excess of 1 per cent, of alcohol by volume; the punishment, confinement in the penitentiary for one year.

Appellant was discovered by officers in a. thicket near some large stone jars containing beer. Shortly prior to his arrest appellant had been engaged in placing caps on bottles which contained beer. The officers testified that they did not know who manufactured the beer. There was no evidence thát the liquor was being manufactured at the time of appellant’s arrest. On the contrary, the record discloses that the act of manufacturing the liquor had been completed by some one before appellant’s connection with the beer had been discovered. Appellant testified that lie had no connection with the liquor, other than to cap the bottles for Paul James after James had filled them with beer. He denied that he manufactured the beer and stated that he did not know when it was manufactured, was not present when it was manufactured, and had no interest in the liquor whatever.

The court failed to submit an in: struction covering the law of circumstantial evidence. A special charge on the subject was timely presented by appellant and by the court refused. We have perceived no direct evidence that appellant manufactured the beer. Where the main fact is proved as a matter of inference from other facts in the evidence, the ease rests wholly, in a legal sense, upon circumstantial evidence. Branch’s Annotated Penal Code of Texas, § 1873; Belson v. State, 97 Tex. Cr. R. 44, 260 S. W. 197. Appellant’s act in capping the beer bottles, standing alone, was not sufficient to relieve the court of the duty of charging on the law of circumstantial evidence.

' We do not deem it necessary to discuss the error of the court in failing to give an affirmative instruction covering the defensive tteory raised by appellant’s evidence. Should another trial be had, the defensive theory should be submitted in an affirmative manner.

The judgment is reversed and the cause re-man'ded.

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