Stevens v. State

BERRY, JUDGE.

Appellant was convicted in the district court of Milam County of manufacturing intoxicating liquor and his punishment assessed' at confinement in the penitentiary for two years.

By bill of exception No. Two appellant complains of the action of the court in permitting the witness Little to testify as to what was clone at Bob Stevens' house by any of the parties during the absence of the defendant. The court qualifies this bill by saying that the Bob Stevens referred to was the father of the defendant and that the defendant lived across the field or pasture about two hundred and fifty yards from Bob Stevens in another house, and that immediately after the little girl in question ran in defendant’s house the defendant came hurriedly out of the house and ran to the barn and came out, and that defendant began pouring some liquid out of a jar on the ground. Under the court’s explanation, this testimony was clearly admissible.

Bill of exception No. Three complains of the court’s action in permitting the witness Little to testify concerning the following matter : that he had seen the defendant come out of the house with a jar and was pouring out the contents of the jar when the witness passed him the following question was asked “And did you know what was in the jar?” and he replied “No sir, I really could not tell you what was in the jar, either whiskey or mash.” The objection .being that the party’s answer that it was either whiskey or mash should not have been permitted, as the witness had stated that he did’ not know what was in the jar. This objection is strongly hyper-critical and the bill shows no error.

Bill of exceptions No. Four complains of the court's action in permitting Sheriff Rogers to testify that he searched the premises, went into the barn and that when he went into the barn there were four or five bushels of corn there and forty or fifty fruit jars broken, and they were broken up and the tops fell ovei- and that he took the empty jars and two or three that were not broken and picked up the whiskey that was in the tops of the fruit jars and in some of the bottoms and poured some in the fruit jars and brought it to town. This testimony was clearly admissible as showing the physical condition of the premises where the offense was alleged to have been committed.

Bill of exception No. F|ive complains of the court’s action in permitting the witness Little to testify that after he had gone with Sheriff Rogers to the house of appellant, that a conversation and altercation accrued these witness and the appellant relative to the shooting of the witness in an altercation between him and the appellant. The objection being that the appellant was under arrest at the time of this occurrence. The court’s qualification to this bill shows clearly that the appellant was not under arrest but that the altercation grew out of the attempt of the witness Little to arrest the appellant and was admissible under all the authorities in this State. Evidence of flight and evidence of resisting arrest have always been held to be admissible.

Bill of exception No. Six complains of the court’s action in permitting the witness Little to testify that after he had gone with Sheriff Rogers out to Bob Stevens’ and had followed a little girl from Stevens’ premises to the premises of the defendant, and had followed Jim Brashear from the barn of the defendant when he ran away and that the witness saw Brashear with a coil or worm in his hand and that he threw it over in some bushes. This bill is qualified with the statement that the witness testified that he saw defendant and Brashear run out of the back door of the house occupied by them, immediately upon the little girl entering- and they then ran to a barn or tin house together and defendant came out with a jar of liquid and poured it on the ground and that Brashear came out of the barn with a worm or coil in. his hands at the time or shortly after defendant and Brashear ran and witness outran him and witness secured the coil or worm Bra-shear had when he left the barn or house. This testimony was clearly admissible as explanatory of the physical facts found at the scene where the offense is alleged to have been committed.

By bill of exception No. 7 appellant complains of the court’s action • in permitting the state to offer in evidence the can or container and coil or tube identified by the Sheriff and another witness as having been found in the field. This bill shows that these articles were found on defendant’s premises as testified to by the witnesses at the time of the arrest and search of said premises and were clearly admissible.

By bill of exception No. Eight appellant complains of the court’s action in permitting witness Little to testify that the coil identified by Sheriff Rogers as having been found in the field was in his judgment the same coil that Brashear had when he was arrested. The court qualifies this bill by stating that there was only one. coil found on the premises and the witness Little gives his reason for identifying the coil. The objection goes rather to the weight than to the admissibility of the evidence and under the explanation of the court, we cannot do otherwise than hold that no error is shown in its admission.

Bill of exception No. Nine, complains of the court’s action in permitting the witness Harris to testify as to how liquor is manufactured. The court qualifies this bill by saying that the witness was offered to prove that whisky could be manufactured with the articles found on the premises, and that upon objection as to qualification he was permitted to answer as to experience etc., along said,line. And that the charge in the indictment was unlawful manufacture of intoxicating liquor and the case was submitted under a charge on circumstantial evidence.

We see no error in the trial court’s action in permitting this testimony.

The court has given a full and a fair charge on the issues presented by the evidence and finding no error in the record, it is our opinion that the judgment should be in all things 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.