
    GOFORTH v. STATE.
    (No. 8539.)
    (Court of Criminal Appeals of Texas.
    May 13, 1925.
    Rehearing Denied June 17, 1925.).
    1. Criminal law <&wkey;62l (2)— Court authorized to order that defendant’s case be tried first, where defendant and coindictee failed to agree.
    
    Where defendant and his eoindietee could not agree on order of trial, under Vernon’s Ann. Code Cr. Proc. 1916, art. 727, court properly ordered that defendant’s case be tried first.
    2. Indictment and information <&wkey;l25(3l) — Indictment charging keeping of premises for storing, manufacturing, selling, and transporting intoxicating liquors not duplicitous.
    Indictment charging that defendant kept certain premises for storing, manufacturing, selling, and transporting intoxicating liquors was not duplicitous, but was authorized under rule permitting charge in same count of several means named in statute of accomplishing same result.
    3. Criminal law <&wkey;596(I), 600(1) — Continuance for absent witnesses held properly refused.
    • Continuance based on absent witnesses held, properly refused, where their contemplated testimony was either admitted by state or was cumulative on an uncontroverted issue.
    4. Witnesses <§»52(7), 193 — Proof by third party of declaration of wife to husband ordinarily not inadmissible against husband.
    Declarations of wife to husband, made in presence of third party, ordinarily are not rendered inadmissible against husband by virtue of Vernon’s Ann. Code Cr. Proc. 1916, arts. 794, 795.
    5. Witnesses &wkey;>52(7), 190 — Declarations of wife not privileged when husband and wife coconspirators.
    When husband and wife are coeonspirators, or when-evidence justifies such a conclusion, declaration of wife is not privileged under Vernon’s Ann. Code Cr. Proc. 1916, arts. 794, 795.
    6. Criminal law <&wkey;4l7(9) — Declarations of defendant’s wife to defendant in presence of officers when they found whisky on premises held admissible against defendant.
    Declarations of defendant’s wife, made to defendant in presence of officers, who were in act of finding and taking custody of whisky on premises occupied by defendant and his wife, held admissible against defendant.
    7. Criminal law <&wkey;518(l) — Defendant’s declarations to officers, having search warrant authorizing his arrest and made at time of finding whisky on defendant’s premises, held admissible.
    Where defendant’s declarations to officers were made at time they had warrant authorizing his arrest, and evidence' justified conclusion that defendant at the'timé was committing offense of keeping his premises for storing whis-ky, held that such declarations.were admissible, notwithstanding Vernon’s Ann. Code Cr. Proc. 1916, art. 810.
    8. Criminal law <&wkey;364(4) — Defendant’s declarations held admissible as part of res gestee.
    Where, at time defendant’s declarations were made, he was in act of committing offense of keeping premises for storing whisky, held that, even though defendant was in custody, within 'meaning of Vernon’s Ann. Code Cr. Proc. 1916, art. 810, such declarations were admissible under rule of. res gestse, as being verbal acts illustrative of his relation to whisky in his dwelling.
    9. Criminal law <&wkey;423(5) — Acts of coconspira-tors during conspiracy admissible against all conspirators.
    Where there was sufficient evidence to warrant conclusion that two others and defendant were coconspirators in keeping premises for manufacture of intoxicating liquor, proof of acts of such others while engaged in manufacture of whisky, were admissible against defendant.
    10. Intoxicating liquors t&wkey;236(l9') — Evidence held to warrant finding that defendant had knowledge that whisky was being manufactured on his premises.
    Evidence held sufficient to warrant finding that defendant had knowledge that manufacture of whisky was conducted on his premises.
    Appeal from District Court," Parker County; F. O. McKinsey, Judge.
    Church Goforth was convicted of keeping premises for manufacturing intoxicating liquor, and appeals.
    Affirmed.
    Osear H. Calvert, of Dallas, and Carter & Queen, of Weatherford, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The conviction is for keeping premises for the manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

Appellant and his coindictee having failed to agree upon the order of trial, the court was in his rights in ordering that the appellant’s ease be tried first. See article 727, C. C. P. Vernon’s Tex. Crim. Stat. vol. 1, p. 419; Terrell v. State, 81 Tex. Cr. R. 647, 197 S. W. 1107.

In charging that the appellant kept or was interested in keeping certain premises, buildings, and place for the purpose of‘storing,, manufacturing, selling, and transporting intoxicating liquors, namely, a certain farm and pasture and the residence and barn located thereon, it is believed that the indictment was not duplicitous, but that this was authorized under the rule which permits a charge in the same count of the several means named in the statute of accomplishing the same result, which is penalized under the same penalty. See Comer v. State, 26 Tex. 509, 10 S. W. 106; and cases collated in Gault v. State (Tex. Cr. App.) 269 S. W. 93. This principle finds sanction also in Todd’s Case, 89 Tex. Cr. R. 99, 229 S. W. 515, upon which the appellant relies.

The facts to which the absent witness Pointer would have testified were admitted by the state. They went to show the absence of the appellant from his premises upon certain days. The other witnesses in the application would have testified that the appellant’s reputation as a law-abiding citizen was good. This testimony was cumulative upon an uncontroverted issue. The same fact, according to the qualification of the bill, was proved by a number of witnesses, and was not controverted by the state. There was no error in overruling the motion for a continuance.

The bill complaining of the exhibition to' the jury of the containers found upon the premises of the appellant, and.. which contained whisky, shows no error.

About a week before the arrest of the appellant and his codefendants, there were observed upon his premises a number of barrels of mash and other circumstances which aroused the suspicion of the sheriff. Each night thereafter he kept the premises under observation, and finally found a distillery near a branch in the field of the appellant, lie saw at the still Prank January and Herman Goforth (the son of appellant), who were conducting its operation. Later, the sheriff, in company with several other officers, arrested January and Herman Goforth while they were present at the still, and while whisky was being made. This still was estimated by the state’s witnesses to he about 300 yards from the appellant’s house. From the appellant’s testimony, it w'as estimated from a quarter to a half a mile. There was a roadway connecting the still with the appellant’s house, which road bore evidence of recent use. .

Appellant presented the theory of alibi, and testimony to the effect that at least a part of the week during which the still was under observation he was at distant points on business; also that “off and on” he had been absent for a greater length of time. Upon the same day and a very short time after making the ’ arrest of January and the appellant’s son at the still, the officers went to the house of the appellant. Accorcl-ing to the state’s testimony, upon being informed by the sheriff that he had a search warrant, appellant made certain declarations, from which we quote:

“You needn’t read it. I have been an officer. * * * I have made two failures, and I had to make this whisky to pay my rent.”

Appellant requested that he be permitted to enter the house. This the sheriff permitted him to - do and accompanied the appellant to the porch. The witness there heard the appellant’s wife say:

“Church, I told you that you would get into trouble.' I wonder who gave it away?”

According to the appellant’s testimony, his arrest took place immediately upon the arrival of the officers at his house, and he entered the premises thereafter. Appellant denied any knowledge of the location of the still or any of the equipment or materials for making whisky found upon the premises. He also denied the declarations imputed' to him by the sheriff, and those imputed to his wife by state’s witnesses.

The. declaration of the wife to the husband, made in the presence or within the hearing of a third party, ordinarily is not rendered inadmissible against him by virtue of articles 794 and 795 of the statute. Vernon’s Ann. Code Cr. Proc. 1916. Proof of her declaration by a third párty is not making use of her testimony against the accused. Cole v. State, 48 Tex. Cr. R. 445, 88 S. W. 341; Gilmore v. State, 91 Tex. Cr. R. 31, 241 S. W. 492, and authorities there collated. See, also, Wharton’s Crim. Evidence, vol. 1, § 398. When the husband and wife are co-conspirators, or when the evidence justifies such a conclusion by the jury, the declaration of the wife is not privileged under the statutes mentioned. See Cole v. State, supra; Cook v. State, 22 Tex. App. 525; Robbins v. State, 73 Tex. Cr. R. 367, 166 S. W. 528; Thompson v. State, 77 Tex. Cr. R. 417, 178 S. W. 1192.

From the testimony it is apparent that, either coincident with his arrest or immediately before .or after, there were discovered by the officers upon the porch of the appellant’s dwelling 21 half gallon fruit jars, each full of whisky. According to the appellant, such declarations as were made by him took place before the discovery of the whisky, the knowledge of the presence of which he disclaimed. The state’s testimony supports the conclusion that the declarations imputed to both the appellant and his wife were made at the time the officers were in the act of discovering and taking possession of the 21 jars of whisky mentioned. Under circumstances not more cogent, it was held in favor of the accused in Reed’s Case, 93 Tex. Cr. R. 21, 245 S. W. 432, that the wife was a party to the crime of manufacturing intoxicating liquor. In the leading case of Cook v. State, 22 Tex. App. 511, 3 S. W. 751, Judge White (the presiding judge of this court), in writing the opinion, declared that the declarations of the wife during the progress of the difficulty, just preceding and subsequent to the shooting, were verbal acts and part of the rest gestee, and that proof of them was not forbidden by statute against the spouses testifying against each other. In the opinion it is also said:

“Again, the evidence, as developed in this case, shows that the husband and wife acted together in the commission of the offense, and are both, principals, and the l-ule iá uniform that the declarations of one of the parties principal made at the time, during the progress and in furtherance of the common design, are admissible in evidence and binding upon the other coconspirators. Cox v. State, 8 Tex. App. 256; Loggins v. State, Id. 434.’

It is believed that the declarations of Mrs. Goforth, made to her husband in the presence of the 'officers, who were at the time in the act of finding and taking custody of the whisky which was on the premises occupied by the appellant and his wife, under the eircuinstances, warranted the conclusion that the premises were kept for the purpose of storing and manufacturing whisky, and that her declaration was admissible against the appellant.

The opinion is also expressed that the declaration'imputed to the appellant was properly received. At the time it was made, the appellant may not have been formally arrested. The evidence upon that subject is conflicting. He claims that there had been a formal arrest, but the state’s testimony is to the contrary. It is clear, however, that the officers had a warrant which authorized his arrest; that there was evidence which justified the conclusion that he at the time was committing the offense of keeping his premises for storing whisky, he having in his house more than ten gallons at the time. According to the state’s testimony, the finding of the whisky and the declaration were practically simultaneous. To bring the.declaration within the purview of article 810, Vernon’s Ann. C. GC P. 1916, it is not necessary that there be a formal arrest. See Clark v. State, 84 Tex. Cr. R. 390, 207 S. W. 98; Phillips v. State, 86 Tex. Cr. R. 624. 219 S. W. 454; Campbell v. State, 89 Tex. Cr. R. 243, 230 S. W. 695; Stanton v. State, 94 Tex. Cr. R. 367, 252 S. W. 519. Granting that he was in custody within the meaning of the statute, we think his declaration was, admissible under the rule of res geste. See Stanton v. State, supra. At the time it was made, he was in the act of committing the offense mentioned. His declaration was a verbal act illustrative of his relation to the whisky that was then in his dwelling. See Boortz v. State, 95 Tex. Cr. R. 479, 255 S. W. 434; Bell v. State, 92 Tex. Cr. R. 342, 243 S. W. 1095; Rayburn v. State, 95 Tex. Cr. R. 555, 255 S. W. 436; Lovelady v. State, 95 Tex. Cr. R. 571, 255 S. W. 415; Coburn v. State, 96 Tex. Cr. R. 25, 255 S. W. 613; Belson v. State, 97 Tex. Cr. R. 45, 260 S. W. 197.

There being sufficient evidence to.warrant the conclusion- that in the commission of the offense charged Frank January, Herman Goforth, and the appellant were coeonspirators, proof of the acts of January and Herman Goforth while engaged in the manufacture of whisky upon the premises of the appellant, was sanctioned by the rule of evidence making the acts and declarations of one coconspirator during the conspiracy, in furtherance of the common design, admissible against all of the conspirators. See Cox v. State, 8 Tex. App. 254, 34 Am. Rep. 746; Coomer v. State, 97 Tex. Cr. R. 588, 262 S. W. 495; and authorities cited; also Branch’s Ann. Tex. P. C. § 694.

The motion for new trial but reiterates the matters presented in the bills of exception.

An exception to the charge challenges the sufficiency of the evidence showing that the appellant had any knowledge that the manufacture of whisky was conducted upon his- premises. Without going into details, the evidence is regdrded as sufficient to connect him with the .knowledge of the manufacturing operations conducted by his son and his employee upon his premises. His farm ,and pasture consisted of some 430 acres of land, 150 or 200 acres of which were in cultivation in grain. A branch ran through the cultivated field. A draw led into the branch. The direct evidence and circumstances showed that the manufacturing operations had been conducted upon his place some days before the arrest. T-he appellant’s son, a mature man, resided upon his premises. There was a path or roadway leading from the house to the still bearing evidence of recent use. There was also a quantity of whisky at the' still, and a number of barrels of mash which gave forth a scent which attracted the attention of the sheriff, and which led to the discovery of the still. In a barn a short distance from the dwelling house of the appellant were some 700 pounds of sugar and other material usable in the manufacture of whisky. At his dwelling were more than ten gallons of whisky, the knowledge of which was indicated by the rest gestee declarations of both the appellant and his wife.

We cannot agree with counsel for the appellant that upon these facts the jury was not warranted in concluding. that the appellant was aware of the use to which his premises were put. The' manufacture of whisky is not necessarily an offense which takes place in a day, but is in the nature of a continuous offense. Mathis v. State, 97 Tex. Cr. R. 222, 260 S. W. 603; Broz v. State, 93 Tex. Cr. R. 137, 245 S. W. 707. The temporary absence of the appellant was one of the relevant circumstances favorable to him, but was not conclusive against the state.

The judgment is affirmed. 
      
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