Wiggins v. State , 109 Tex. Crim. 195 ( 1928 )

According to the state's testimony, officers located a still in a thicket. After watching the still and listening to a conversation for a while, they rushed upon the still and found the appellant and Day. The still was in operation and was running whiskey. On the ground were a number of utensils, including bottles, jars, buckets, an axe, barrels of mash, and a jug of whiskey.

According to the testimony of the appellant, given in his own behalf, he was sixty-three years of age. In company with Day, who was seventy years old, he was engaged in trapping. They had built a wooden shack in which they lived, and decided to make some whiskey for medicinal purposes. They had only begun operations when Officers Gardner and Daniels appeared, made the arrest and took possession of and destroyed the still. According to his testimony, appellant had not at any previous time manufactured intoxicating liquor. Upon cross-examination there was elicited from the appellant, over his objection, testimony to the effect that he had possessed a still about a year before which he had gotten from a man by the name of Elkins in Polk County; that he had taken it to Tyler County; that he had not taken it to his home but had put it in some bushes and later brought it to Hardin County, where it was found at the time of his arrest, which was at a point about three-fourths of a mile from the camp-house. He testified that he did not put it at his camp-house because he did not want anyone to know that he had such a thing. He claimed and testified that for seven years he was unable to perform any manual labor; that he was suffering from physical ailments for which it was necessary to use whiskey; that he had used it and did use it upon the advice and under the direction of physicians; that he took four drinks a day.

It is the state's contention that the testimony mentioned, which was elicited upon the appellant's cross-examination, was relevant upon the issue of the intent of the appellant in making whiskey. Appellant contends that the peculiar circumstances are such as to render the receipt of the testimony mentioned improper and prejudicial to a degree that demands a reversal of the judgment. To obviate a continuance, the state made the following admission:

"The state admits as true the following facts: That Dr. W. L. Selman removed from Hicksbaugh, Texas, about two years before this date; that prior thereto he was the physician of the defendant and treated him for asthma and other ailments, covering a period of five or six years; that during said period the health of the defendant was bad, and during said period the defendant was treated by the said witness and was advised by said witness to use and take whiskey for his health, and that the use of whiskey would be good for defendant's health."

It is quite plausibly contended that the fact that the appellant moved the still from Polk County to Tyler County would be a matter of no weight as bearing upon the issue of intent, but that proof of it being prima facie an extraneous offense (that of transporting equipment), its receipt in evidence was inhibited by the rule which forbids the introduction of proof of other offenses not coming within some of the permitted exceptions to the rule. It is conceived that the concealment of the still would be a circumstance usable by the jury to combat the appellant's testimony that his intent in making the whiskey was a lawful one. The writer is of the opinion that so far as the testimony elicited upon the cross-examination went to show the concealment of the still, it was admissible and relevant. See Graeb v. State, 283 S.W. 819. The appellant introduced his wife who testified, and the testimony elicited by him from her related solely to the state of his health and corroborated his own testimony. Upon cross-examination, over appropriate objections, she testified that she had never seen the still around her house; that she had never seen it before in her life. Against this tstimony the point is made that it was violative of the statute which forbids the wife to become a witness against her husband; that not being germane to the direct examination, its receipt was error. Appellant, through his counsel, contends that the testimony thus elicited from his wife was calculated to impress the jury that the appellant was conscious of an unlawful act in possessing the still and in consequence suppressed the knowledge that he had it from his wife. This cross-examination of the wife, we think, was improper.

A son of the appellant was introduced in his behalf on the issue of his father's physical condition. On cross-examination, over objection of the appellant, the state elicited from the witness testimony to the effect that his father had always been able to buy medicines' and whiskey needed for his treatment. The relevancy of this testimony is not perceived. The position taken by the appellant, in his testimony, was that in making the whiskey he was engaged in a lawful act — that of making whiskey for his use as medicine — and that his financial condition with reference to his ability to procure whiskey by other means was not a proper subject of inquiry for the reason that it was his right to make whiskey for medicine, notwithstanding he might have been able to purchase it. He had introduced no testimony upon the subject of his inability to purchase, and the testimony mentioned came in the nature of original testimony for the state. We do not find, by way of bill of exceptions, any complaint of the cross-examination of this and other witnesses as bearing upon the appellant's ill health and the necessity for the use of whiskey for his bad health. That question, however, was foreclosed by the admission which has been copied above, and the state was in no position to contradict the fact that the appellant had been suffering from asthma and other ailments for a period of five or six years, and had been treated therefor by a physician who had advised him that whiskey was good for his ailments and should be used therefor. Branch's Ann. Tex. P. C. Sec. 325; Davis v. State, 52 Tex.Crim. Rep.; Roberts v. State, 143 S.W. 614; Davis v. State, 152 S.W. 1097. The improper testimony elicited from his son tends to controvert these conceded facts in that it was calculated to convey to the jury the idea that if the appellant was really in need of whiskey and able to buy it, that it was not necessary for him to have engaged in the unlawful manufacture of it.

Upon reconsideration and viewing the matter of which complaint is made in the light of the entire record, we are constrained to the view that the motion should be granted. It is accordingly ordered that the affirmance be set aside, the judgment of the trial court reversed and the cause remanded.

Reversed and remanded.