
    REUB v. STATE.
    (No. 7389.)
    (Court of Criminal Appeals of Texas.
    Jan. 31, 1923.)
    1. Intoxicating liquors <5&wkey;233(2) — Evidence of manufacture by defendant of intoxicating liquor admissible in prosecution for selling.
    In a prosecution for selling intoxicating liquor, evidence that officers searched defendant’s premises at the time of his arrest and found liquor in process of manufacture was admissible.
    2. Intoxicating liquors <&wkey;233(2) — Statements of defendant that he knew nothing about place where liquor was found held admissible.
    In a prosecution for selling intoxicating liquor, where officers had made no search of an outhouse and knew nothing of what they would find there, and had made no arrest, evidence of defendant’s statements before arrest that he knew nothing about the outhouse and hogpen were admissible.
    3. Criminal law &wkey;>730(13) — State attorney’s argument not prejudicial.
    In a prosecution for selling intoxicating liquor, where prosecuting witness stated that he went to defendant’s place with two others, where a fight occurred, and, when asked where one of them was, replied that “he was dead,” reference in argument of the prosecuting attorney to the fight, in which he questioned the means of death, was not prejudicial, in view of an instruction not to consider the argument for any purpose.
    4. Criminal law <&wkey;815(4)( — Refusing instruction that choc neer was not intoxicating not error.
    In a prosecution for selling intoxicating liquor, in view of uncontradicted evidence that choc beer was intoxicating, refusing an instruction that choc beer was not necessarily an intoxicating liquor was not error.
    5. Intoxicating liquors <&wkey;239(I) — Refusing instruction not to consider evidence of finding of still at the time officers visited defendant’s premises not error."
    In a prosecution for selling intoxicating liquor, refusing an instruction not to consider evidence of officers with reference to the finding of a. still and quantity of liquor at the time they visited defendant’s premises was not error.
    Appeal from District Court, Eastland County; Geo. L. Davenport, Judge.
    Alex Reub was convicted of selling intoxicating liquor, and be appeals.
    Affirmed.
    D. H. Flewellen and Joe W. Strode, both of Ranger, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Eastland county of the offense of selling intoxicating liquor, and his punishment fixed at one year in the penitentiary.

The statement of facts is very short, and evidences the sale of two bottles of choc beer by appellant to the purchaser alleged in the indictment. A witness testified without contradiction that choc beer was intoxicating.

It was in testimony by certain officers that, upon information that there was trouble at appellant’s place of business, they went down there and found him very much under the influence of liquor and suffering from injuries received during a fight. They searched further, and with a Yale key found in appellant’s pocket they unlocked the door of a small building 15 or 20 feet in the rear of appellant’s bakery, and therein found liquor in process of manufacture. We have frequently held that testimony of the manufacture by the accused of intoxicating liquor is admissible and has probative force when the charge against him is the selling of intoxicants. We think the bills of exception presenting appellant’s objection to the testimony of what was found by the officers present no reversible error.

Appellant also complains of the introduction of testimony as to what took place between him and said officers when they reached his premises. An examination of the record makes it evident that appellant was not under arrest at the time. The officers asked appellant certain questions when tkejj arrived at his premises, and at the time asked him if he knew anything in regard to the outh.ouse and hogpen back there, and he said he knew nothing atf all. The officers had made no search of the outhouse, and knew nothing of what they would find there, and had made no arrest at all. After they found the contents of the outhouse and the still above mentioned they returned to his room, and then arrested appellant. We do not think the statement of appellant that he knew .nothing of the contents of the hogpen and outhouse, made under the circumstances above detailed, was subject to the objection that appellant was under arrest and unwarned at the time.

It was alleged in the indictment that the sale of the intoxicating liquor was made to a Mr. Moody, and it appears in appellant’s bill of exceptions No. 4 that after this witness left the stand, he was recalled, and the state asked him who went with him to appellant’s place on the 14th of May, to which witness answered that W. E. Nichols'went with him, and the witness was then asked where Mr. Nichols was, and replied that he was dead. Said bill shows that this was all objected to. The bill further reflects the fact that during the argument the prosecuting attorney referred to the fight that occurred down there, and stated that Reub (appellant herein) was beaten up, and that Moody was beat up, and then asked the question, “Where, is Nichols?” The bill further shows that the county attorney then said: “He is dead, and, gentlemen of the jury, how did he die?” This was also objected to. Said bill further reflects the fact that the court then told the the jury they would not consider the argument of Mr. Overson, the state’s attorney, for any purpose. We do not regard the argument as susceptible of any conclusion that it conveyed to the jury evidence of any material fact not appearing in the record, or that it was of such inflammatory character as to create a prejudice against the appellant. Even if said remark was susceptible of an inference that Nichols was injured in the fight that occurred, it would in no wise suggest that any blame at; tach to appellant or to the witness Moody, or ,to any one else. Said facts were not gone into, and the statement of the county attorney in his argument, while it • should not have been made, was not of that injurious character which in our opinion would call for a reversal.

Appellant has two bills of exception complaining of the refusal of special charges. We think the court did not err in declining to instruct the jury that choc beer was not necessarily an intoxicating liquor. Nor in refusing to instruct them1 that they could not consider the testimony of the officers with reference to the • finding of the still and a quantity of intoxicating liquor at the time they visited the premises of appellant.

Finding no error in the record, the judgment of the trial court will be affirmed. 
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