Calloway v. State , 99 Tex. Crim. 438 ( 1925 )

Appellant was convicted in the district court of Kaufman county of manufacturing mash from which spirituous, vinous and intoxicating liqors were to be made, and his punishment fixed at two years in the penitentiary.

The facts in evidence seem ample to support the conviction and need not be stated further than may be necessary to make clear our announcement of the legal principles involved.

Appellant filed a plea of former acquittal alleging that in cause No. 8640 he had been placed on trial under an indictment charging in three counts possession of a still (without describing the parts), transportation of a still (without description of the parts), and possession of equipment and a still (describing the parts), and that on the trial of said charges he had been acquitted. The learned trial judge made an order overruling said plea. There appears no bill of exceptions complaining that such plea was not submitted to the jury. Appellant also made what is denominated "A motion to dismiss," alleging that in cause No. 8640 (containing the three same counts above referred to), he had been tried and convicted. The trial court overruled this motion. There are three bills of exception, the first of which was taken to the refusal of the motion to dismiss. We are in doubt as to the correctness of such practice as the filing of such motion to dismiss, which was addressed to the court. However, if such practice be proper, the court was called on to decide the questions thus presented. It appears that a complete still was found in appellant's car, which finding formed the basis of the prosecution for the possession and transportation of the still. It also appears that at a different time and place eight barrels of mash belonging to appellant were found and this transaction was made the basis of the prosecution for the possession and manufacture of said mash. Appellant made a written confession admitting that he had the still and that he purposed making whiskey on same out of said mash. Not only do these things show two entirely separate and distinct offenses, but in support of the motion to dismiss it was not shown that the judgment in cause No. 8640 was a final judgment, and no effort seems to have been made to submit the matters involved to the jury. If called on to act on such a motion, we think the action of the trial court in overruling it entirely correct.

No error appears in the complaint of the reception of evidence showing that on the same day on which officers found the eight barrels of mash with which appellant was shown to have been connected, he was found in Terrell, some four and one-half miles from where the mash was located, and that in Terrell he had a still in his car. An element of the offense of possession, transportation, etc. of mash is, that it was made, etc., for the purpose of manufacturing intoxicating liquor. Appellant's possession of a still in the same neighborhood and about the same time as that of the mash, would be a circumstance tending to make plain his purpose and intention in regard to the mash.

We do not comprehend the third bill which presents objection to the introduction of testimony of the finding of the two wagons with the barrels of mash in them on the same day appellant was found with the still in his car. The offense here on trial was the making of said mash. The finding of same and the showing of appellant's connection therewith were the material facts involved in the instant prosecution.

No error appearing, the judgment of the trial court will be affirmed.

Affirmed.

ON MOTION FOR REHEARING.