Henson v. State , 101 Tex. Crim. 617 ( 1925 )

The appellant was indicted, tried and convicted in the district court of Cass County for manufacturing liquor and his punishment assessed at one year's confinement in the penitentiary.

The appellant in this case admitted upon the stand, that he manufactured the whiskey in question, but contended that it was for medicinal purposes.

Complaint is made by the appellant to the action of the court in giving charge to the jury at the request of the State a special charge to the effect that the burden of proof was upon the defendant to show that he was manufacturing the whiskey in question for medicinal purposes.

This charge alone might be subject to said complaint, for failing to instruct the jury that if they believed appellant was manufacturing the liquor for medicinal purposes or if they had a reasonable doubt thereof to acquit. In the court's general charge and a special charge given at the request of appellant, the court did so instruct the jury, and we think thereby overcame the criticism made. Clevenger v. State,255 S.W. 622; Jones v. State, 257 S.W. 895; Garcia v. State,273 S.W. 856.

Appellant complains of the action of the court in permitting the State to prove by the witness Allbright that he, appellant, was drinking and slightly intoxicated at the time the officers came upon them at the still in question. We see no error in the admission of this testimony. The appellant admitted on the stand that he made the whiskey and that he had drunk a great deal of whiskey and had been under the influence of it, all without objection and besides, the testimony was res gestae of the transaction.

By bill of exceptions No. 4, complaint is lodged against the action of the court in permitting the district attorney to ask the defendant on cross-examination relative to Dr. Jackson's liking to take a drink. This bill was in question and answer form, and in violation of Article 846, C. C. P., and we are not authorized to consider same.

Bill of exceptions No. 5, is also in question and answer form and what has been said with reference to bill No. 4, applies to this bill. This court has repeatedly held under said article supra, and many decisions, that it cannot and will not consider bills of exception in question and answer form.

By bill of exceptions No. 7, appellant complains of the action of the court in permitting the State's witness, Curtwright, to testify that the defendant as soon as he was arrested at the place where they were making the whiskey stated, "Boys, you have caught me with my pants down and that he had played hell or something of that kind." Such statements have been held by this court many times to be admissible as a part of the res gestae under the same or similar circumstances. Rayburn v. State, 255 S.W. 436; Coburn v. State, 255 S.W. 613, and authorities therein cited.

If same are not res gestae statements, it will be harmless error in this instance because the appellant admitted on the stand that he was making the whiskey in question.

In bill of exception No. 6, the appellant complains of the action of the court in permitting the State to prove by its witness, Curtwright, that he, defendant, when arrested did not say anything about for what purpose the whiskey was being made. This presents the only serious question in this case for our consideration revealed by the record.

In the case of Rippley v. State, 58 Tex.Crim. Rep., Judge Dividson held that it was reversible error for the State to prove that the defendant remained silent after his arrest, citing Simmons v. State, 50 Tex.Crim. Rep., and reaffirming this doctrine in the case of Thompson v. State, 88 Tex. Crim. 29. This court has repeatedly held that it was reversible error to make proof of the defendant's silence, in the case of Skirlock v. State, 272 S.W. 1782, and Johnson v. State,272 S.W. 783.

We believe the action of the trial court in permitting the State to introduce evidence as to the defendant's silence was error, which requires the reversal of this case.

For the error above mentioned, the judgment of the trial court is reversed and remanded.

Reversed and remanded.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.