Simmons v. State , 103 Tex. Crim. 175 ( 1925 )

In appellant's motion he refers us to Horak v. State, 95 Tex. Crim. 474, 255 S.W. 191, as being in conflict with the conclusions announced in our original opinion. We do not understand any conflict exists. Horak's case was reversed for a failure to submit the defensive issue of manufacture for medicinal purposes. That issue was properly submitted here. The motion contains a persuasive argument upon the facts and we are urged to hold that under the evidence the jury was not warranted in finding against appellant's claim that he was making the whiskey for medicinal purposes. Doubtless able attorneys who represented accused presented the same arguments to the jury without avail. In view of the motion we have again carefully examined the evidence and have been unable to reach a different conclusion than already announced. The facts warranted the jury in believing that while the officers were searching in one part of the house appellant removed the still from the kitchen and secreted it under some brush where it was found with the contents yet hot. This, together with other circumstances shown, could fairly be construed by the jury to be inconsistent with the innocent purpose claimed by appellant on the trial.

The controverted issue appears to be one peculiarly within the jury's province to solve. Having the benefit of all the evidence, and after seeing the witnesses and hearing them testify they settled the matter against appellant. We think their verdict must stand.

The motion for rehearing is overruled.

Overruled.