Schmidt v. State , 100 Tex. Crim. 451 ( 1925 )

Appellant makes complaint of some slight misstatement in our original opinion which is not material to the issue and will not be discussed. We have again examined the record in view of appellant's claim that the State should have been required to elect to prosecute either for the manufacture of whiskey claimed to have been found in appellant's house by the officers, or that which was manufactured by him after they arrived. In view of the fact that the court so instructed the jury that they could not convict appellant, under the facts of this case, for the liquor that was manufactured by him under the direction of the officers after they reached his house, we think it wholly immaterial that the State did not comply with appellant's request in this regard. The confession of appellant which was admitted in evidence, was material as tending to show him guilty of the manufacture of intoxicating liquor. Whether this related to the liquor found in appelllant's house, was for the jury. The charge of the court was ample and full in instructing the jury that they could not convict for the liquor that was made under the direction of the officers. It also instructed the jury specifically that though appellant might intend to manufacture liquor and prepare to do so, but if he had been interrupted before any liquor was manufactured, he could not be held guilty of such manufacture. We do not think the charge subject to any of the criticisms made in appellant's motion. The motion is principally an argument on matters already carefully examined and decided by us and we do not deem it necessary to restate or discuss matters which have been fully considered by us.

The motion for rehearing will be overruled.

Overruled.