Allen v. State

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

The State witnesses, who were in a hunting party, unexpectedly came to a still at which the manufacture of whisky was in progress. A man named "Shorty" and the appellant were present. The conduct of Shorty and his conversation with the witnesses left no question that he was engaged in the manufacture of whisky. It was the appellant's position that he was not interested. He claimed that he resided in another county and was visiting his daughter, at whose home he and Shorty spent the previous night; that he, in company with Shorty, went to the still, appellant's purpose being merely to receive a drink of whisky. However, when the State witnesses appeared, appellant had a gun in his hand. Shorty had a six-shooter which he presented, demanding that the arriving party throw up their hands. Some conversation ensued during which Shorty demanded that all parties take a drink of whisky which was present. In the course of the conversation, one of the witnesses quoted the appellant as using these words:

"I have raised a family of nine children. I have tried to make an honest living farming and failed and you boys have come in here and caught us making whisky. We were in here bothering nobody and we don't want to be taken and all the Rangers in the State of Texas can't take us. We aim to die over this."

Shorty then said, "No, we did not come in here to be taken." Under the circumstances, the evidence justified the trial court in declining to treat the case as one depending alone upon circumstantial evidence. The declaration of the appellant was not equivocal, but considered in the light of the conditions under which it was made, it was an admission that the appellant was engaged in the manufacture of whisky and not merely a fact from which the inference of his connection with the main fact might be drawn. Gentry v. State, 41 Tex.Crim. Rep.; Spreights v. State, 1 Texas Crim. App., 555; Branch's Crim. Law, Secs. 202 and 203, also cases cited.

Appellant filed written exceptions to the court's charge. The fifth paragraph of Bill of Exceptions No. 1 reads as follows:

"Because same is too general, vague and indefinite and is not properly drawn or sufficiently verified or certified, and is not a proper presentation of the law, and because same charged the jury that it is unlawful to manufacture intoxicating liquor."

Upon it the court made this indorsement:

"Received before the charge was read to the jury and overruled by the court."

As copied in the record, both the signature and the file mark were omitted from the charge. From the original charge which has been sent here, both the file mark and the signature appear. The signature is very dim and has the appearance of having been written with a pencil which made an exceedingly dim mark, or that an erasure had taken place. Under Article 938, it is declared that this court must presume "that the charge of the court was certified by the judge and filed by the clerk of the court before it was read to the jury, unless such matters were made an issue in the court below and it affirmatively appears to the contrary by a bill of exceptions, properly signed and allowed by the judge of the court below, or proven up by by-standers, as is now provided by law and incorporated in the transcript as required by law." There is no certificate of the trial judge either embodied in the bill of exceptions or accompanying it to the effect that the charge was not signed, or that it was not filed before it was read to the jury. The statute, Article 938, C.C.P., makes it imperative that the charge be certified and filed, and unless it affirmatively appears from the bill of exceptions that this was not done, a compliance with the law is presumed. Alberson v. State, 54 Tex.Crim. Rep.; Art. 938, C.C.P.

Complaint is made of the action of the court in excusing the witness Sandall from the rule. The law vests in the trial court certain discretion with reference to the application of the rule separating witnesses or excluding them from the court-room. It is only when this discretion is abused to the prejudice of the accused on trial that a reversal is required. Miller v. State,36 Tex. Crim. 47; Vernon's Tex.Crim. Stat., Vol. 2, p. 399; Bishop v. State, 81 Tex.Crim. Rep.; Shamblin v. State, 228 S.W. Rep., 242. In the bill of exceptions it is stated that Sandall "was permitted to testify that he took the trail made by the defendant and one other man, and traced defendant by tracks in the snow from the place where said still was located to the house where defendant was arrested." Appellant testified that he spent the night at the home of his daughter; that he picked up a gun and remarked that he was going hunting; that Shorty who was present, said, "If you are going hunting, come and go with me, and I will give you a drink of whisky." There was snow on the ground, and the appellant walked with Shorty to the still, and according to his testimony, had been there but about twenty minutes when the State's witnesses arrived. If we properly interpret the testimony of the appellant, after the State witness appeared, he walked through the snow which was on the ground to the home of appellant's daughter where he was afterwards arrested. The court seems to have excused Sandall upon the theory that he was an officer. Appellant offered to prove that the conditions in the precinct in which Sandall acted as a deputy constable did not authorize the appointment of such an officer. The facts to which Sandall testified are cumulative of other testimony and related, if we properly comprehend the record, to undisputed facts. (See Wagner v. State, 53 Tex. Crim. 306. )

The circumstances are not such as would warrant this court in holding that in excusing Sandall from the rule, the rights of the appellant were prejudiced. The evidence is deemed sufficient to support the finding of the jury.

The judgment is affirmed.

Affirmed.

ON REHEARING.