
    FERGUSON v. STATE.
    (No. 7873.)
    (Court of Criminal Appeals of Texas.
    Nov. 7, 1923.
    Rehearing Denied Nov. 28, 1923.)
    1. Criminal law <&wkey;517(2) — Evidence as to accused’s statements held reievai^ on both the making and possession of intoxicating liquors.
    Evidence that when, sheriffs and others entered accused’s house, they found him engaged in manufacturing whisky, and that upon accused’s statement that he made some whisky and put it in a trunk, the officers found the whisky in the trunk, held relevant on both the making and the possession of the liquor.
    2. Criminal law &wkey;>517(4) — Admissions held not inhibited by confession statute when liquor found as result thereof.
    Where sheriff and others entered accused’s home, and found him making whisky and, upon accused’s statement that some of the whisky he made was in the trunk, found some whisky there, as accused’s admissions led to the discovery of the whisky, they were not inhibited by the confession statute (Code Cr. Proc. 1911, art. 810).
    3. Criminal law &wkey;o37l (10) — Refusal to withdraw evidence of manufacturing, when state elected to rely on possession, held not error.
    Where accused was charged with the unlawful manufacture of intoxicating liquors and the possession thereof, and the state subsequently elected to rely on the count charging possession, it was not error to refuse to withdraw the evidence of manufacturing, because such evidence was relevant on the intent for which accused possessed the whisky made.
    4. Criminal law <s=»37l(l) — Rule excluding evidence of other offenses does not embrace those relevant on issue of intent.
    The rule excluding evidence of other offenses does not embrace those relevant on the issue of intent.
    5. Intoxicating liquors <&wkey;233(2)— Evidence of time and manner of acquisition of liquor, quantity, locality, and like circumstances held admissible to show possession for sale.
    To prove possession of intoxicating liquor was for the purpose of sale, evidence of the manner and time of acquiring it by accused, quantity on hand the locality in which it was found and other like circumstances were admissible.
    6. Criminal law <&wkey;>l 169(12) — Improper admission of accused’s admissions to .officers held not to require reversal.
    Admission in evidence, in violation of the confession statute (Code Or. Proc. 1911, art. 810), of accused’s statement to officers at the time of his arrest, that he sold some whisky to B. and others, held1 not to .justify reversal, where the court instructed the jury to disregard such admission, and accused testified he made whisky to support himself and he received a minimum sentence.
    On Motion for Rehearing.
    7. Criminal law <&wkey; 1044 —Accused could not complain that state was not required to elect when motion not renewed after state rested.
    Where a motion to require state to elect on which count it would proceed, was made before the state had completed its testimony in chief and closed its case, and accused did not, when the state rested, renew the motion or make a similar request, he could not complain of the failure to require the state to elect.
    8. Criminal law <@=»1169(1) — When admission of illegal testimony mot ground for reversal stated.
    The admission of illegal testimony will not require a reversal, unless such admission was calculated to injure accused, or to leave the question of probable injury in such grave, doubt as that the court is unable to believe the introduction of such testimony harmless.
    iS^For oilier cases see same topic and KE1'-NUMBEK in all Key-Numbered Digests and Indexes
    Appeal from District Court, Falls County; Prentice Oltorf, Judge.
    C. F. Ferguson was convicted of unlawfully possessing intoxicating liquor, and he appeals.
    Affirmed.
    Nat Llewellyn, of Marlin, for appellant.
    Tom Garrard, State’s Atty., of Midland, and Grover C. Morris, Asst. State’s Atty., of Devine, for the State.
   MORROW, P. J.

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

The unlawful manufacture of intoxicating liquor and the possession of such liquor were charged in separate counts. The count charging possession alone was submitted to the jury. The related nature of the offenses and' the evidence adduced in support of each of them were such that there was not error in refusing at an earlier stage of the trial to require the state to elect between the counts. Gonzales v. State, 12 Tex. App. 663, and other cases listed in Branch’s Ann. Tex. P. C. p. 233.

The sheriff and others entered the house of the appellant, and found him engaged in manufacturing whisky. He told the officers that he had made some whisky and put it in a trunk. Upon this information the whisky was found by them in the trunk. The evidence was relevant on both the making and the possession of intoxicating liquor, and, having led to the discovery of the whis-ky, it was not inhibited by the confession statute, Code Cr. Proc. art. 810. See, also, Torrence v. State, 85 Tex. Cr. R. 310, 212 S. W. 957, and other cases listed in Vernon’s Tex. Crim. Stat. 1922 Supp. vol. 2, p. 2595, note 12.

There was no error in refusing to withdraw the evidence showing that appellant manufactured the whisky in question, as such evidence was relevant on the intent for which appellant possessed the whisky which he made.

In discharging the burden which was upon the state to show that the possession of the whisky by appellant was for the purpose of sale, the manner and time of his acquiring it, the quantity on hand, the locality in which it was found and other like circumstances were available to the state. The rule excluding evidence of other offenses does not embrace those relevant on the issue of intent.

While the officers were present with appellant and before his formal arrest, he stated to them that he had “sold whisky to Bag-by and others.” The court instructed the jury to disregard the testimony of the'officers to this fact. The conditions were such as to bring appellant in custody within the meaning of the statute on the subject of confessions. See Clark v. State, 84 Tex. Cr. R. 390, 207 S. W. 98, and other cases in Vernon’s Tex. Crim. Stat. 1922 Sup. p. 2593. The declaration mentioned does not seem to have been res gestse but to relate to a different transaction remote from the present.

The appellant became a witness in his own behalf, and voluntarily testified on his trial that “he was making a little whisky for his own use, and because he was unable to work and had to have clothes to wear and some.thing to eat.” He said further: “I was making it to support myself, arid to get food and buy clothes. I sold some to get tobacco.”

In view of the testimony of the appellant, the withdrawal by the court of the admissions improperly received, and the fact that the minimum penalty was assessed, the record does not justify a reversal of the judgment. It is therefore affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant strenuously insists that we erred in not reversing this case, because the learned trial judge refused to require the. state to elect upon which count the prosecution would proceed: The facts in this case do not bring it within the rules requiring the state to elect at the close of its testimony. While the state was introducing its testimony in chief and before it had closed its case, appellant made a motion to requires the state to elect. At that stage of the trial the court below declined to grant said motion. When the state had rested its case there was no renewal of the motion or any request that the state be. then compelled to elect. Appellant is in no position to complain.

We have again reviewed oúr former opinion in reference to the testimony of the sheriff concerning a statement made to him by appellant to the effect that he had sold whisky to one Bagby, and are of the opinion that this matter was correctly decided. The admission of illegal testimony will not require a reversal, unless such admission was calculated to injure the appellant or to leave the question of probable injury in such grave doubt as that we are unable to believe the introduction of such testimony harmless. Under the facts of the instant case we deem it altogether unlikely that the introduction of said testimony could have injuriously affected the result of appellant’s trial, and the motion for rehearing will be overruled.  