Bland v. State

• Decision Date: 25 October 1922
• Docket Number: (No. 7067.)
• Citation: 244 S.W. 1023
• Parties: BLAND v. STATE.
• Court: Texas Court of Criminal Appeals

244 S.W. 1023

BLAND v. STATE.

(No. 7067.)

Court of Criminal Appeals of Texas.

October 25, 1922.

Rehearing Denied November 29, 1922.

Appeal from District Court, San Augustine County; V. H. Stark, Judge.

Wallace Bland was convicted of unlawful manufacture of intoxicating liquors, and he appeals. Affirmed.

E. T. Anderson, of San Augustine, Tex., and D. M. Short & Sons, of Center, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

MORROW, P. J.

Conviction is for the unlawful manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of one year.

Davis testified that on the 9th day of May, 1921, while he was hunting, he met the appellant in the woods, and conversed with him for about 15 minutes; that he saw smoke boiling up, four barrels, and something that looked like an oil tank, and a long trough near the oil tank. Raymond Coulter and Wallace Bland came out of the woods with a load of pine. The witness said, "Raymond, I have got you," and he said, "Yes, G____d d____n it; you have got me. Yes, G____d d____n it; you have got us. Get down and come over and look at it." When the witness got there he said, "What is that in the barrels there?" to which Raymond replied, "That there is beer of some kind, or brew that they made shinny out of, and the other outfit is what they put it in to cook it off." There was a barrel of water that they ran it out of, and there was a cup setting in front of the barrel. The witness sat there and looked and talked with Raymond. He said that his whisky never bothered his kids because he sold it all back the other way. The witness then asked him if he knew it was against the law to sell the stuff, and he said: "Yes; he knew that, and he always wanted his boys to do better than he did, and he said he was going to quit it before his boys got big enough. He also said that 4 barrels would make 16 gallons, and that it would take until morning to boil it off." The witness started to go, when Raymond said: "No; stay there a while and we would have something to drink." The witness told him "No," but he said, "If you will go to the house, I have got a gallon up there, and I will give you a drink." Raymond Coulter said that he had made a little, and had 6 gallons left; that he had sold 2 gallons and drank a gallon; that he sold it for $4 a quart. Bland told the witness to stay a while, and it (the whisky) would be better, and it would soon run off. The witness went back over there that day, and saw Wallace Bland again. He and Raymond Coulter were sitting on the edge of the hill. Raymond went with the witness to see some negroes, and Wallace Bland remained at the still. When the witness first went there, Wallace Bland came with a load of pine; he saw him do nothing except put some pine under the boiler. There was a fire, and the still was in operation.

The witness Andrews testified that a small quantity of the liquid was tasted and smelled by him, and that it tasted and smelled like whisky. Apparently there was sufficient evidence to justify the jury in finding that the appellant, Bland, and Raymond Coulter were engaged in manufacturing whisky. If this be correct, it was unnecessary that a specific charge be given the jury to determine whether it was intoxicating. Proof that it was whisky would establish the fact that it was intoxicating without further inquiry. Aston v. State (Tex. Cr. App.) 49 S. W. 385; Mayo v. State, 62 Tex. Cr. R. 110, 136 S. W. 790; Uloth v. State, 48 Tex. Cr. R. 295, 87 S. W. 823; Rutherford v. State, 49 Tex. Cr. R. 21, 90 S. W. 173; Words & Phrases, Second Series, vol. 2, p. 1182.

The testimony of Andrews sufficiently connects the occasion with that testified to by the witness Davis to render it competent as a circumstance bearing upon the nature of the article made. Andrews, in his testimony, states a date identical with that mentioned by Davis, and says that, at the time he saw the jug containing the liquid which he described as "smelling and tasting like whisky," he saw Davis at the Burrus' Place in San Augustine county.

Davis testified that, after seeing the still, and having the conversation which has been detailed, he went to a field and saw Andrews, and together they went back to the still. The court was not in error in refusing to withdraw this testimony from the consideration of the jury.

Complaint is made of the refusal of the court to exclude that part of Davis' testimony which details the conversation with Raymond Coulter. In approving the bill making this complaint, the trial judge says that no...