Broadnax v. State , 103 Tex. Crim. 160 ( 1926 )

From conviction in the District Court of Harrison County for manufacturing intoxicating liquor, with punishment fixed at one year in the penitentiary, appeal is taken.

According to state witnesses they found appellant in a small patch of woods in which were five stills all in operation. They testified that appellant started to run but they stopped him. The extent of the woods were described as about the size of the court house. Fires were under the stills and whiskey was running out of them. One witness said when he first saw appellant he was working among the stills, and the other witness said he was stooping over one of them. Both state witnesses said appellant was drinking and under the influence of liquor.

The court gave a correct charge on circumstantial evidence, and at the request of appellant gave a special charge to the effect that his presence at the stills was not alone sufficient to convict, nor was the fact that he was under the influence of intoxicants so sufficient, and that if they had a reasonable doubt as to his presence at the still being the result of a search he was making for his cattle, the jury should acquit.

We have examined the other special charges and are of opinion that refusal of same was correct. Appellant admitted being in the woods near the stills when arrested, but denied any connection therewith, and said he was looking for his cows. In our judgment he did not suffer any injury from the refusal of a charge on alibi. It is not necessary in order to make out the crime of manufacturing whiskey, that the accused be in immediate contact with the still.

The court sustained the state's objection to the question whether appellant had ever been convicted for any offense. This shows no error. Asking such question is not proper practice as reflection will make evident. If the question had been allowed and been answered in the negative, it would appear fair to allow the state to show, if it could, that the accused had falsified, for that forsooth he had been arrested a number of times for affrays, fighting and other misdemeanors. To such procedure it is sure the accused would object upon the ground that he could not be impeached by proof of arrest or conviction for offenses which did not impute moral turpitude, and in this he would be correct. Neither law nor fair dealing could justify proof, over the objection of one party, which the other would not be allowed to rebut. Brown v. State, 242 S.W. Rep. 218.

Bill No. 6 complains of the rejection of a conversation had between one Anderson and appellant on the afternoon of his arrest. The details of the conversation were not admissible, but we observe that the witness was allowed to testify to the substance of said conversation, viz: that appellant was looking for his cows at the time he saw and talked to Anderson.

We have carefully considered the testimony and conclude the jury found ample support therein for their conclusion.

The judgment will be affirmed.

Affirmed.

ON MOTION FOR REHEARING.