Belson v. State

• Decision Date: 26 March 1924
• Docket Number: (No. 8192.)
• Citation: 260 S.W. 197
• Parties: BELSON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 197

260 S.W. 197

BELSON v. STATE.

(No. 8192.)

Court of Criminal Appeals of Texas.

March 26, 1924.

Appeal from District Court, Falls County; Prentice Oltorf, Judge.

B. H. Belson was convicted of manufacturing intoxicating liquors. He appeals. Reversed.

Frank Oltorf and Nat Llewellyn, both of Marlin, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

MORROW, P. J.

Manufacturing intoxicating liquor is the offense; punishment fixed at confinement in the penitentiary for a period of three years.

Several officers, possessed of a search warrant, searched the premises of the appellant. He was present and made no objection to the search. On the premises there was found a fluid which the appellant said was "homemade wine, that he had made in case of sickness." The officer said that it was "choc beer," and there were a number of bottles of it. Whether it was intoxicating or not is not revealed. Nothing further of a criminating nature was found in the dwelling. A search was then made of an outhouse, and, upon the request of the officers, appellant produced the key thereto. In this outhouse there was found a still. When the door was open and the still discovered, the officer said, "Here it is, boys," and the appellant hung his head and said, "It's hard luck, you've got me." The still was connected and warm, though it was empty. On the premises was a liquid which the officers pronounced as whisky, though the quantity was not stated.

The circumstances show that the appellant was in custody. Objection to the receipt in evidence of his declaration was made and overruled. Whether the appellant had manufactured the intoxicating liquor was a question of fact to be deduced from the circumstances. The facts in evidence so connected the appellant with the transaction that if a jury under proper instruction had found him guilty of manufacturing whisky, adequate evidence would not have been wanting to support the verdict. The equipment for manufacturing such liquor was upon his premises and under his control; so was the outhouse in which the still was located and the key to which was in his possession. There was evidence that he endeavored to dissuade the officers from searching the outhouse, declaring that it contained tools and nothing else. The boiler of the still, though empty, was warm. There was mash present suitable for the manufacture of whisky; there was a stove with fuel at hand; there was the manufactured product. When these things were discovered, the officer exclaimed, "Here it is, boys." The appellant spontaneously remarked: "It's hard luck, you've got me." In the opinion of this court, this declaration was admissible under the res gestæ rule. If the appellant had said that the still was not his and that the whisky had been made by another, the court would not have been warranted in refusing to receive it, because such a statement would have been so closely connected with the transaction as to characterize it as res gestæ.

In Copeland's Case, 94 Tex. Cr. R. 113, 249 S. W. 495, a still was found in operation, with two brothers present. One of them said that the still was his; that his brother had no interest in it. They were tried separately. The brother offered this declaration, and the trial court rejected it. This court held it admissible, citing several leading cases supporting the conclusion. See Bell v. State, 94 Tex. Cr. R. 266, 250 S. W. 177.

In many decisions and text-books an abstract statement of the rule of res gestæ is made. The difficulties arise in applying it, and the precedents in this court reflect its liberal rather than the strict interpretation. See Wharton's Crim. Ev. vol. 1, § 262, p. 491, also page 502. To become a part of the res gestæ, precise concurrence with the act upon trial is not...