White v. State

LATTIMORE, Judge.

Conviction for manufacturing intoxicating liquor; punishment, one year in the penitentiary.

Officers found appellant reading a paper, sitting something like three or four feet from a still which was in operation. . A shot gun was near by. A few feet away were eight barrels of mash. A gallon or two of whisky was in a container, and some eighty yards from the still a five gallon keg of the same liquor was found. The still was located in a pasture some two or three hundred yards from the house in which appellant lived. The record does not disclose the nearness of any other house. There was no proof that any other party was at or near the still. In conversation with the officers at the time appellant said, “There wasn’t nobody here with me.”

Appellant’s special charge No. 1 was refused, but appears almost literally in the main charge. His special charge No. 2, seeking to have the jury told that before they could convict they must believe beyond a reasonable doubt “that the defendant did some act necessary in the manufacture of the liquor,” was in substance given in the main charge wherein the jury were told that they could not convict unless they believed beyond a reasonable doubt “that the defendant did some act toward the manufacture of intoxicating liquor.”

The court charged on circumstantial evidence fully and fairly. If there was any reference to principals in the charge when excepted to, same was evidently taken out in response to an exception. Proof that the accused, who testified as a witness, had been tried and convicted for a felony within five years next past, was admissible as affecting, if the jury so thought, his credibility as a witness. Authorities are uniform in this regard. The transaction testified to was not too remote. The finding of the keg of whisky eighty yards from where the still was in operation, was a circumstance to be considered by the jury which, under all the facts, gave him the lowest penalty for the offense.

One who is found at a still alone and makes res gestae statements to the officers to the effect that no one was with him, will not be heard to complain of the fact that when he took the witness stand as a witness, on cross-examination, it was elicited from him that in what he told the officers at the time he made no mention of the making of the whisky by a man named Simmons. Appellant did not keep silent when the officers found him at the still, but made statements. The State is not now proving silence under arrest as a circumstance against appellant, but that he then told one story and now tells a different story. See authorities collated in Mr. Branch’s Annotated P. C, Sec. 147.

The officers went first to the house where two women were. Bill of exceptions No. 7 complains of argument on the part of State’s attorney to the effect that appellant’s wife was trying to fire a gun to give him warning. The bill is qualified by the trial court who sets out the testimony in this regard, and as qualified said bill shows no error.

Finding nothing in the record calling for a reversal, the judgment will be affirmed.

Affirmed.