Ellison v. State

It is urged that the charge of the court did not present the defensive issue. Appellant excepted to a paragraph of the court's charge wherein the jury were told that if they believed that a complete still was possessed for the purpose of manufacturing intoxicating liquor, as charged in the indictment, but if they further believed that the defendant did not possess and have in his possession said equipment, if any, they should acquit, or if they had a reasonable doubt on this question, they should acquit. We have read and analyzed as best we can appellant's objection to this part of the charge. The statement of facts shows that appellant had in his possession, as substantially stated in our original opinion, barrels having in them a composition looking like sugar and water, also having a fifty-gallon oil can under which was a fire, and from which oil can a pipe connected therewith ran through a barrel of water, and from the other end of which pipe liquid was dripping which tasted hot and was characterized by one of the witnesses as green corn whiskey. One of the witnesses spoke of the pipe running through the barrel of water as a worm. Several of the witnesses said they were invited by appellant to come over to where they saw this apparatus, he telling them that he was going to "take off a run." Another witness said he saw some of the others drink some of the liquor which came out of the pipe in question, and he would not say whether they were drunk or not, that they did not get down. He declined to say they were under the influence of liquor, saying they were doing just like a bunch of boys will do, cutting up like they were drunk when they might be plumb sober. He said the stuff he tasted tasted a little like whiskey, but he did not drink much of it and did not know how much of it it would take to make one drunk. From the record there seems little, if any, doubt of the fact that appellant had in his possession equipment for the purpose of manufacturing intoxicating liquor. It appears to us from the record that appellant was trying to defend on the proposition that the liquor he made on this particular occasion was not intoxicating, but that is not the test. If he has in his possession equipment for the purpose of manufacturing intoxicating liquor, and this fact is believed by the jury to have been established beyond a reasonable doubt, they would be justified in their conclusion of guilt. Appellant cites in his motion Schmidt v. State, 97 Tex.Crim. Rep.; Nolen v. State, 98 Tex.Crim. Rep., and Gordon v. State,280 S.W. 585. In the first two cases cited the accused was charged with manufacturing liquor capable of producing intoxication. We held, and as we still think correctly, that no matter how much preparation for making liquor might be shown on the part of the accused, unless he carried his preparation to the point of actual manufacture of the forbidden liquor, he would not be guilty under the form of charge in the indictment against him. Manifestly the conclusion announced would have no application to one who is charged with the possession of equipment for the manufacture of liquor. If the parties whose cases were reversed in the opinions just referred to had been charged with possession of equipment, and the proof had shown that they had made all their preparations and had their equipment there, they might have been held guilty, though they had not made any liquor at all. So in the case of Gordon v. State, supra, charged with the possession of intoxicating liquor for purposes of sale, the question was raised by the defense that the proof did not show that the liquor was intoxicating. Manifestly unless the proof showed beyond a reasonable doubt that the liquor possessed by the accused was intoxicating, he would not be guilty. We are unable to make application of these authorities to a case such as the one before us, where the only question is: Did the defendant possess equipment for the purpose of manufacturing intoxicating liquor? If he had equipment, and the jury was satisfied beyond a reasonable doubt that his purpose in having it was to make intoxicating liquor, and these facts appeared in the record, we must uphold the judgment. We are unable to agree that the charge of the court complained of does not present squarely the issue in the case.

In regard to the witness who testified over objection that he understood what the appellant meant when he said he was going to "take off a run," we still are of opinion that the witness was properly permitted to say that by the expression "take off a run," appellant meant a run of shinny. The expression "take off a run" is not one of common understanding. Appellant invited a number of people over to see him "take off a run." A witness having qualified by saying he understood what appellant meant by this, might make a statement to the jury as to what same did mean.

Being unable to agree with appellant, the motion for rehearing will be overruled.

Overruled.