Bland v. State , 92 Tex. Crim. 636 ( 1922 )

Conviction is for the unlawful manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of one year.

Davis testified that on the 9th day of May, 1921, while he was hunting, he met the appellant in the woods and conversed with him for about fifteen minutes; that he saw smoke boiling up, four barrels and something that looked like an oil-tank, and a long trough near the oil-tank. Raymond Coulter and Wallace Bland came out of the woods with a load of pine. The witness said: "Raymond, I have got you," and he said, "Yes, G_d d__n it; you have got me. Yes, G_d d__n it, you have got us. Get down and come over and look at it." When the witness got there he said: "What is that in the barrels there?", to which Raymond replied: "That there is beer of some kind, or brew that they made shinny out of, and the other outfit is what they put it in to cook it off." There was a barrel of water that they ran it out of and there was a cup sitting in front of the barrel. The witness sat there and looked and talked with Raymond. He said that his whisky never bothered his kids because he sold it all back the other way. The witness then asked him if he knew it was against the law to sell the stuff, and he said: "Yes, he knew that, and he always wanted his boys to do better than he did, and he said he was going to quit it before his boys got big enough. He also said that four barrels would make sixteen gallons, and that it would take until morning to boil it off." The witness started to go, when Raymond said: "No, stay there a while and we would have something to drink." The witness told him, "No," but he said, "If you will go to the house, I have got a gallon up there, and I will give you a drink." Raymond Coulter said that he had made a little and had six gallons left; that he had sold two gallons and drank a gallon; that he sold it for four dollars a quart. Bland told the witness to stay awhile, and it (the whisky) would be better and it would soon run off. The witness went back over there that day and saw Wallace Bland again. He and Raymond Coulter were sitting on the edge of the hill. Raymond was with the witness to see some negroes and Wallace Bland remained at the still. When the witness first went there, Wallace Bland came with a load of pine; that he saw him do nothing except put some pine under the boiler. There was a fire, and the still was in operation.

The witness Andrews testified that a small quantity of the liquid was tasted and smelled by him and that it tasted and smelled like whisky. Apparently there was sufficient evidence to justify the jury in finding that the appellant Bland and Raymond Coulter were engaged in manufacturing whisky. If this be correct, it was unnecessary that a specific charge be given the jury to determine whether it was intoxicating. Proof that it was whisky would establish the fact that it was intoxicating without further inquiry. Aston v. State, 49 S.W. Rep., 385; Mayo v. State, 136 S.W. Rep., 790; Uloth v. State, 48 Tex.Crim. Rep.; Rutherford v. State, 49 Tex.Crim. Rep.; Words Phrases, 2nd Series, Vol. 2, p. 1182.

The testimony of Andrews sufficiently connects the occasion with that testified to by the witness Davis to render it competent as a circumstance, bearing upon the nature of the article made. Andrews, in his testimony, states a date identical with that mentioned by Davis and says that at the time he saw the jug containing the liquid which he described as "smelling and tasting like whisky," he saw Davis at the Burrus' Place in San Augustine County.

Davis testified that after seeing the still and having the conversation, which has been detailed, he went to a field and saw Andrews, and together they went back to the still. The court was not in error in refusing to withdraw this testimony from the consideration of the jury.

Complaint is made of the refusal of the court to exclude that part of Davis' testimony which details the conversation with Raymond Coulter. In approving the bill making this complaint, the trial judge says that no objection was made to the introduction of this testimony, and it appears from the bill that in connection with this explanation by the trial court, the first time it was challenged was in a special charge requesting the court to exclude it. The declarations of Coulter referred to in the bill apparently were made in the presence of the co-conspirator Bland at the time and place where they were jointly operating a still for the purpose of manufacturing the liquor in question and while the liquor was in process of making. His declarations, it seems, would not have been inadmissible, especially as they were made directly in the presence of Bland and at the time the fire which he had replenished and which was used in cooking the liquid they were making was burning. Coulter at the time of making the declarations was in possession at the still of the fruits of the crime, that is, the still and machinery with which they were making it and such of the liquid as there. His co-conspirator was also in possession and was present at the time. The declarations of Coulter implicated Bland and invoked from him no denial of his guilt, but on the contrary, such part as he took in the conversation, tends to confirm his connection with the manufacture of the whisky. We have been referred to no precedents and are aware of none which would, under the circumstances detailed, justify us in declaring the action of the trial court, as revealed by the bill, erroneous.

A special charge requesting the submission of the law of circumstantial evidence was requested, but it does not appear that any exception was reserved to its refusal.

Finding no error in the record, the judgment is affirmed.

Affirmed.

ON REHEARING. November 29, 1922.