
    MANLEY v. STATE.
    (No. 9281.)
    (Court of Criminal Appeals of Texas.
    Oct. 28, 1925.)
    1. Intoxicating liquors <§=>137 — Possession of equipment and mash, for manufacturing liquor, offense.
    Pen. Code 1925, art. 666, makes it an offense to possess mash and equipment for manufacturing liquor, or to be furnished same for such purpose.
    2. Criminal law <S=»5I I (4) — Evidence corroborating testimony of accomplice insufficient to warrant conviction for possession of equipment and mash for manufacture of liquor.
    In prosecution for unlawfully having in possession equipment and mash for purpose of manufacturing intoxicating liquors, where alleged accomplice testified that he, together with defendant and another, intended to make whis-ky, held that evidence corroborating such testimony was insufficient to warrant conviction.
    Commissioners’ Decision.
    Appeal from District Court, Floyd County; R. C. Joiner, Judge.
    Homer Manley was convicted of the possession of equipment and mash for the purpose of manufacturing intoxicating liquors, and he appeals.
    Reversed and remanded.
    Mathews & Overson, of Floydada, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

The appellant was tried and convicted in the district court of Floyd county for unlawfully having in his possession equipment ’and mash for the purpose of manufacturing intoxicating liquor, and his punishment assessed at 2 years in the penitentiary.

Appellant in many ways attacks the indictment charging the defendant herein with possession of equipment and mash, etc., upon the contention that the article in the statute, now 666 of Revised P. O. 1925, does not make the possession of mash a violation of said law, but that the furnishing of mash and equipment in said article only is a violation of the law. This contention is without merit in our opinion, and the statute referred to makes it both a violation of the law to possess said articles or to be furnished same for the purpose of manufacturing intoxicating liquor. This disposes of practically all the questions raised in this case, save and except as to the sufficiency of the evidence to sustain a conviction.

The evidence, briefly stated in this case, shows: That the sheriff and his deputies went to the ranch of Billy Moores and to a certain old house therein, situated in the roughs and the breaks of the cap rock, and there found near said house a barrel filled with mash and a keg and another barrel, and a 5-gallon bucket with the top cut out and a 5-gallon oil can, a lot of bedding, camping outfit, and a 2-gallon jug, and afterwards found a copper coil about 3 days later, and also found some empty sugar sacks. That the 50-gallon barrel of mash was about 300 or 400 yards from the camphouse and the 10-gallon and 5-gallon buckets and the sacks were there also, and that the copper coil was about 75^ yards from the camp in some bushes, and that the day of the arrest they found a Ford car some 800 yards from the camp upon the top of the cap rock, and noticed where a steel barrel had been rolled from near said car down the hill, and that he tracked the steel barrel where it had been rolled down the hill and through the roughs to about 200 yards to 250 yards from said camp. The evidence further shows that the appellant was a short distance from the camp at the time he was seen first and not close to or near proximity of said articles and was eating some winter grapes, and that he shortly thereafter turned and went where the said deputy sheriff was near the said Ford car and was there arrested.

The state introduced Julius Beavers as a witness, who admitted upon the stand and testified that he and one Duff Beavers and appellant were intending to make whisky out of the mash and with the. utensils above mentioned, and that they had assembled all of said articles there for said purpose, and were intending later on to boil off said mash and manufacture s'ame into whisky, which testimony of said Beavers, if believed, would connect the appellant sufficiently with the alleged crime to convict him, if said Beavers’ testimony was properly corroborated. He also testified that the Ford car belonged to Duff Beavers, his cousin, and that he and Duff Beavers and appellant had had • some words the night hefore the arrest the following day. The appellant took the stand in his own behalf, and denied having any knowledge of said mash or any connection therewith in any manner, or of the assembling of said articles above n'amed, for the purpose of manufacturing intoxicating liquor, and denied all connection therewith, or any knowledge thereof, save and except that he helped the witness Julius Beavers roll the barrel down the hill, and Julius Beavers requested him and Duff Beavers to help bring down the roughs another barrel, which brought about 'a quarrel between said Beavers, which they refused to do, that he and Duff Beavers had left Hill county and gone over in the neighborhood where Julius Beavers was then residing, and were on their way from Hill county to EL Paso, and had intended to stop over-a few days to see if they could obtain work while en route, and that it was his and Duff Beavers’ intention the following morning to. leave said camp and to continue their journey.

The trial court properly recognized that Julius Beavers was an accomplice, and so instructed the jury on the law applicable to accomplice testimony. It is strenuously insisted' by the appellant’s counsel that there is not sufficient testimony to corroborate Julius Beavers, the accomplice in this ease, to the extent of connecting the appellant with the alleged offense; and unless it can be said that his admission of assisting said Beavers in rolling or carrying the barrel off the cap rock a part of the why down the canyon or roughs is sufficient corroboration to connect him with the-alleged offense, then the appellant’s contention is true and would have to be sustained. We have carefully examined the entire record of this case, and are forced to the conclusion that the evidence showing the appellant assisted in carrying the barrel down off the cap. rock is not sufficient of itself to connect the defendant with the alleged crime. There is-no other evidence in the record, showing that-the appellant assisted in any way the assembling of these articles, or knew anything about the purpose for which they were to be-used, or that he knew that same were there, outside.the barrel he assisted in rolling, land refused to help bring down the hill, except the testimony of said accomplice Beavers. We think this testimony is insufficient corroboration to authorize the conviction in this case, and, in support thereof, cite the cases of Hanson v. State, 27 Tex. App. 140, 11 S. W. 37; Williams v. State, 82 Tex. Cr. R. 215, 199 S. W. 296; Weatherred v. State (Tex. Cr. App.) 272 S. W. 471; Noble v. State (Tex. Cr. App.) 273 S. W. 251.

The judgment of the trial court is therefore reversed and remanded.

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