Horne v. State

The appellant was convicted in the District Court of Knox county of the offense of possessing equipment for the purpose of manufacturing intoxicating liquor, and his punishment assessed at one year in the penitentiary.

The record discloses that the sheriff and his deputies raided the premises of the appellant, and found what the state's witnesses denominated a copper still, some barrels of mash, and a coal oil burner in a dugout, lighted and burning, and other utensils claimed by the state that were used for the purpose of manufacturing intoxicating liquor. The appellant failed to take the stand and testify, but introduced his wife and son as witnesses, whose testimony shows that it was his contention that the copper boiler in question was used for washing purposes, and the mash and other utensils found and claimed by the state possessed for the purposes of manufacturing intoxicating liquor, were left there by some Mexican cotton pickers.

Appellant complains of the action of the court in overruling his application for continuance, seeking to obtain the testimony of certain witnesses, whom he claimed would testify that the copper boiler claimed by the state to be used in manufacturing intoxicating liquor, was used for washing purposes, and that the other utensils were left there by Mexican cotton pickers. We are of the opinion that there was no error in overruling this motion, on account of no diligence being shown to secure the attendance of said witnesses. The record discloses that the indictment was filed on the 24th day of March, 1924, and that a trial of this case was had on the 23rd day of February, 1925, and on March 5, 1925, the court set this case again for trial for March 16, 1925. No process was requested until March 6, 1925, for said witnesses. These facts negative any diligence whatever to secure said testimony, and no circumstances justifying the lack of diligence were shown.

Complaint is made to the action of the court in permitting the state to read all the counts in the indictment to the jury, because upon the former trial the state elected to try the appellant solely on the third count, charging possession of equipment as above stated; and to the action of the court in his preliminary statement in his charge to the jury, setting out all four of said counts, because it is contended that same was specifically calling the jury's attention to extraneous matters which would result in injury to the appellant. The court should have set out in his charge only the count or counts, submitted to the jury; but having instructed the jury to confine themselves to the third count in the indictment only, and the verdict being in response thereto, we fail to see any harmful injury that could have resulted to the appellant from the matters herein complained of.

Complaint is also made to the action of the court in permitting the sheriff to testify that after searching the premises and finding the articles above mentioned, and within about an hour and a half or two hours thereafter, he observed the appellant return home, and when about 200 yards distant, pour some corn whiskey out of a fruit jar and throw it on the ground, because it is contended that said evidence was proving a different offense from the one for which appellant was then being tried. We are of the opinion that there is no merit in this contention. We think this testimony was admissible for the purpose of showing intent, and was a circumstance which would tend to connect the defendant with the alleged offense for which he was then on trial, and would also tend to defeat the defensive theory. Nichols v. State, 97 Tex.Crim. Rep., and authorities therein cited.

Appellant complains of the action of the court in permitting the state on cross-examination to ask the appellant's wife if she used the stove that was found burning and the lid to the boiler in question, for washing clothes, because it is contended that appellant had not brought out on examination in chief of his wife any evidence pertaining to said stove or lid, and the action of the state was in effect making a witness of his wife against him. There is no merit in this contention. The record shows that appellant, in support of his defense, on direct examination, had his wife to testify fully to the effect that she used the boiler for washing purposes, which the state contended was used by the appellant for a still; and the cross-examination complained of was germane to the issue raised by the testimony in chief of his wife. Ward v. State,159 S.W. 278; Houseton v. State, 204 S.W. 1007; 83 Tex.Crim. Rep., and for collation of authorities, see Branch's Ann. P. C., Sec. 152.

Appellant complains of the refusal of the court to permit him to introduce in evidence in connection with his cross-examination of the sheriff, a picture of what was called a steam boiler, resembling the boiler which the state contends was a still and which the defendant contends was used for boiling clothes; because it is contended that said picture would tend to contradict testimony of the sheriff to the effect that he, said witness, had never seen a wash boiler like the one in question. We fail to see any injury resulting from the action of the court in this respect, as the defendant was allowed to fully interrogate the sheriff relative to said matter, and the wife was permitted fully to testify to all the uses for which this boiler was made, and the mere fact that the sheriff had never seen a similar one used for washing purposes would not likely influence the jury; and in view of the minimum penalty having been assessed, we are forced to conclude that if there was any error committed, it was harmless.

The appellant complains of the action of the court in refusing to give a peremptory instruction to the jury to return a verdict of not guilty, because of the insufficiency of the evidence to sustain a conviction. We have carefully examined the bills of exceptions relating to these matters, and are of the opinion that the record fails to support his contention.

After a careful examination of the entire record, we are of the opinion that same fails to show any reversible error in the trial of this case, and the judgment of the trial court is accordingly 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.

ON MOTION FOR REHEARING.