Martini v. State

Appellant complains at our opinion wherein it is said that no one testified to having seen Bush or known him or heard of him save appellant, and that appellant's wife did not testify. He insists that the latter statement places upon him the burden of proving his innocence. Reference to the failure to produce material witnesses shown to be in position to give favorable testimony, has never been held to be the placing of any burden upon the accused. Appellant also insists that his witness Sullens had seen and known said Bush. This matter is fully discussed and set forth in our original opinion.

Appellant's motion contains the following contention that "When called upon to explain the presence of the still, he denied any guilty knowledge of the presence of the still, and expressly states who was responsible." We do not so read this record. Nowhere in appellant's testimony nor that of any other witness does there appear any statement made by him or them to the effect that when arrested appellant stated that any man named Bush had worked for him, or that such a man possessed the still or had any connection with same. In his testimony appellant said:

"I don't know what became of Mr. Bush. I went to Archer City with Mr. Goodwin. I didn't report his leaving to the sheriff, because I didn't want to cause anybody any trouble."

He further testified:

"I knew all the time after this man Bush told me that that he was the man who operated the still. I didn't tell any of the officers after I got out from under arrest about Bush operating the still. I don't remember whether or not this is the first time I have told any of them about Bush."

None of the officers who made the search of appellant's premises and discovered the still, gave testimony to any such statement made by appellant.

We are not in accord with the contention in appellant's motion. Putting the most favorable light possible on the facts in this case, and accepting for the purpose of the argument his statement that he came home from an absence not later than November 25th and found one Bush making whiskey under the floor of appellant's house, and that he paid Bush off and told him he must take the still out, and that Bush then told appellant thathe could not move it until he got through with it, and that on the morning of the 28th of November officers came to appellant's house and found under the floor of the room which appellant was occupying, a still which they said was warm, and freshly run whiskey also warm, the still and paraphernalia being in condition for operation, with six barrels of rye mash and one of apricot mash sitting near, a one-hundred-pound sack of sugar in a car in appellant's garage, jugs and bottles of whiskey in the cellar, bottles and a jar with some whiskey in them in the garage — all these in and around appellant's house and garage would seem to justify the jury's conclusion that appellant was guilty whether they found Bush to have ever been there or not.

No question was raised in the trial court as to the judgment and sentence not responding to the verdict. Our attention is now drawn to the fact that while the court submitted only the question of appellant's guilt of the offense charged in the second count of the indictment, which charge was possession of a still for the manufacture of intoxicating liquor, and the verdict found by the jury was for guilt of the possession of such still — the judgment and sentence were for manufacturing and possession of intoxicating liquor. The judgment and sentence will be reformed so as that appellant will be adjudged guilty of possessing a still for manufacturing liquor capable of producing intoxication, and that he be sentenced to confinement in the state penitentiary for a period of not less than one year nor more than two years, in accordance with the verdict and judgment, and that as reformed the judgment will be affirmed. See authorities cited pp. 900-901 Vernon's C. C. P.; Pearson v. State, 257 S.W. Rep. 895. Otherwise appellant's motion for rehearing will be overruled.

Overruled.