Helton v. State , 94 Tex. Crim. 359 ( 1923 )

Conviction is for the manufacture of intoxicating liquor. Punishment is fixed at two years in the penitentiary.

The specific charge is that appellant in October 1921, unlawfully manufactured intoxicating liquor, "to-wit, one quart of whisky." The exceptions were properly negatived, as was required prior to taking effect of the amendment of the Thirty-seventh Legislature.

The country about where appellant lived is timbered, and has many hills, hollows and ditches through it. On the occasion inquired about the officers found in a deep ditch or ravine some three-fourths of a mile north from appellant's house a still. It was in operation at the time. About 240 gallons of mash, some in a state of fermentation, was found. The fire was in a charcoal burner, and the boiler was of copper of about ten gallon capacity. The cooling feature was a coil running through a keg containing water, and whisky was dropping out at the end of the coil into a jar or crock. There was about a pint of whisky in the jar. This was taken by the officers. The contents of the boiler was not quite as clear as that in the jar, and was described as "first run" whisky. Enough was taken from the boiler which, together with that in the jar, made a quart. When the officers discovered the still appellant was within two or three feet of it apparently examining the coil or boiler. His wife was upon the bank of the ravine. Both ran when they became aware of the presence of the officers, and appellant was shot in the leg.

No objections to the court's charge were presented, but a number of special charges were requested; one was given, the others refused, and, upon such refusal alleged error is predicated. Two special charges were to the effect that the indictment having alleged that the whisky was not being manufactured for medicinal, mechanical, scientific or sacramental purposes, the burden was on the State to prove it, and if it had failed to do so an acquittal was demanded. Three charges were properly refused. See Robert v. State, 90 Tex.Crim. Rep., 234 S.W. Rep. 133; Shaddix v. State, 90 Tex.Crim. Rep., 235 S.W. Rep. 602; Mayfield v. State, 244 S.W. Rep. 819; Mayo v. State, 92 Tex.Crim. Rep., 235 S.W. Rep., 241.

The court refused a special charge instructing the jury that it was no offense to possess either equipment or mash for manufacturing liquor, and though appellant may have been in possession of both he could not be convicted unless he had actually manufactured liquor. At appellant's request the court had already told the jury if he was preparing to make whisky, but had not actually begun the making of it when arrested, he should be acquitted. We see no necessity for both of the instructions. The one given involved the one refused, and to have given the latter would have been a repetition.

Bill No. 4 complains at the refusal to give a peremptory instruction to return a verdict of acquittal. This was properly refused.

Another requested charge was if the equipment found in appellant's possession was not capable of being used to manufacture whisky, the jury should acquit. This charge had no basis in the evidence, but would have been in the face of it.

Bills of exception Nos. 6 and 7 are to the refusal to give two special charges on circumstantial evidence. The request therefor is based upon the contention that appellant was charged with making "one quart" of whisky, when the direct proof shows he made only one pint. If appellant's contention is sound he might have gone even further and contended that the only direct evidence was as to the number of drops the officers actually saw fall from the coil into the receptacle placed to receive it. This would be carrying the doctrine of circumstantial evidence to a requirement beyond any practical use. It is only when inculpatory evidence is wholly circumstantial that an instruction as to that character of evidence is demanded. If the facts proven are in such close juxtaposition to the main fact to be proved as to be equivalent to direct testimony, a charge on circumstantial evidence is not required. (For collation of authorities see Sec. 1874, pp. 1039 and 1040, Branch's Ann. P.C.)

After Johnson, one of the officers, had testified about the arrest and finding the still and whisky, he was asked by appellant's counsel regarding a statement he made to Joe Brown, one of appellant's attorneys, a few days later relative to the matter. He said: "I did not tell him (Brown) if I had gotten there a few minutes later I would have caught him running the whisky. I told Mr. Brown I didn't find any whisky. I did not tell him the truth. * * * I didn't tell him I got there too early." On redirect examination he testified: "If I did tell Mr. Brown I didn't find any whisky out there, I did it because the lawyers have a habit when you get a case to try and work the case up before you get in the court, and of course I am not going to `shell the corn' out to them before it comes time to try a defendant. I am not working for the defendant after I go out and catch him. I consider it a better policy to tell a lawyer like I did Mr. Brown, than to tell him it was none of his business. Of course, we had a whole lot of fun about catching Horace Helton again, because we caught him before." We would observe here that the latter statement as well as all of the redirect examination went in without objection. Appellant called Mr. Brown as a witness, who stated that in a conversation two or three days after the arrest Johnson told witness that, "He didn't get any whisky from Horace Helton and that he got there too soon; if he had been a few minutes later he would have caught him but at the time he got there he wasn't making whisky." This evidence was admissible only to impeach Johnson. Appellant was not satisfied to follow the predicate, but after eliciting the answer last quoted, went further and asked Brown to tell how the conversation came up, and what was said. The State objected but it was overruled, and Brown gave his version of how the conversation started. On cross-examination the State asked Brown if when he began the conversation he didn't say, "I saw in the paper, or heard, they had caught old Horace again for "moonshining"" to which Brown replied "That conversation might have occurred." Objection to the question and answer was sustained on the ground that it was proving a former offense against appellant. No request was made to withdraw it from the jury. We think the court was in error in sustaining the objection. Appellant himself departed from the rule relative to impeaching testimony, and instituted the inquiry as to the beginning of the conversation. Having gone into the matter, it was pertinent for the State to develop all of the conversation on the same subject. (Art. 811 C.C.P., and cases cited thereunder in Vernon's Crim. Statutes, Vol. 2, and Branch's Ann. P.C., Sec. 91, pp. 58 and 59.) Even if this were not true, the circumstance would not call for a reversal because practically the same evidence had gone into the record without objection in the redirect examination of Johnson.

Finding no error in the record, the judgment is affirmed.

Affirmed.

ON REHEARING. May 16, 1923.