Bing v. State , 103 Tex. Crim. 272 ( 1926 )

The appellant was convicted in the District Court of Bowie County for the offense of possessing mash for the purpose of manufacturing intoxicating liquor, and his punishment assessed at one year in the penitentiary.

Briefly stated the record discloses that the deputy sheriff White and the federal enforcement officer, McDonald, searched the premises of the appellant, and found a barrel of mash in a box in his smoke house, and a furnace, an iron barrel and a bucket, which the state contended was used for the purpose of manufacturing liquor. It was the contention of the appellant that the mash was used for the purpose of feeding his hogs, and the barrel and furnace were used by his wife for washing purposes.

Complaint is made to the action of the court in permitting the state, on cross-examination, to ask the witness Barton relative to employing lawyers to represent the appellant, and to having said lawyers employed by the year to represent him in his business, and to having said lawyers to defend other negroes charged with violation of the liquor law and other crimes, and to finding a still on his premises in addition to the still in question. It is urged by appellant that this testimony was involving separate offenses, and was highly prejudicial to his rights before the jury. The court in qualifying this bill states that it was admitted for the purpose of showing interest and bias on the part of the witness. We think there was no error in the admission of this testimony, and that the state was clearly entitled to show the interest and bias of said witness, although it might involve other offenses. This question as we view it, is well settled by the authorities of this state. Magruder v. State, 33 S.W. 233; 35 Tex. Crim. 219; Edwards v. State, 172 S.W. 232, on rehearing; Graham v. State, 265 S.W. 592.

Appellant complains of the action of the court in permitting the state, over his objection, to have the witness White testify that after discovering the equipment and mash in the smoke house of the appellant, he went to where appellant was at work and requested him to go up to the house with him, at which time the following conversation took place between them:

" 'What is the trouble, you must have found something,' and I says, 'Mose, I am surprised at you,' and I says, 'Mose, I am surprised at you, just getting out of trouble and here you are in again.' and he says, 'Mr. White, the boys are coming home Christmas and I haven't got any money to give them, and was going to make them a little; let's just pour it out and say nothing about it,' and I said, 'you don't want me to go to the penitentiary, do you? * * * And I believe he told me a negro over in the Piney Grove settlement had the worm.' "

The objection urged to said testimony is that the appellant had not been properly warned and said statements were made while under arrest. The court in qualifying these bills states that said conversation took place immediately after finding the mash, and was res gestae of the offense, and although it did not appear that the defendant had been put under arrest, the officer stated it was the purpose to arrest the defendant, though he had not so informed the defendant. We think the contention of the appellant in this particular is untenable. This court has frequently held, under similar circumstances, such testimony was admissible as part of the res gestae. Coburn v. State, 255 S.W. 613.

Complaint is urged to the action of the court in permitting the witness McDonald to testify that the mash in question contained a certain quantity of sugar, and that there was corn sugar in the mash, he guessed. The witness testified that he tasted the mash in question, and it was sweet. We are of the opinion that if there was any error committed in the admission of this testimony, it was harmless under the facts of this case.

Objection is urged to the court's charge and that portion of same in which the court submitted to the jury the defendant's defense to the effect that, "if you believe that the mixture found by the officers in the barrel in defendant's smoke house was corn chops put up by defendant solely for the purpose of feeding his hogs, or if you have a reasonable doubt as to this, etc.," to acquit the defendant.

It is contended by the appellant that if he had the mash for any other purpose than the manufacturing of whiskey, he was entitled to an acquittal. This contention is true, but defendant's defense was that he was using same only for hog feed, and no other issue was raised by his testimony, and the charge of the court was applying the law to the facts in the case. We are of the opinion that this charge was not erroneous and certainly not of such a nature as calculated to injure the rights of the appellant, or to show that the appellant has not had a fair and impartial trial. See Art. 743, Vernon's C. C. P.

Finding no reversible error in the record, the judgment of the trial court is affirmed.

Affirmed.

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.

ON MOTION FOR REHEARING.