Ferguson v. State, (No. 7873.)

• Decision Date: 07 November 1923
• Docket Number: (No. 7873.)
• Citation: 255 S.W. 749
• Parties: FERGUSON v. STATE.
• Court: Texas Court of Criminal Appeals

255 S.W. 749

FERGUSON v. STATE.

(No. 7873.)

Court of Criminal Appeals of Texas.

November 7, 1923.

Rehearing Denied November 28, 1923.

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

C. F. Ferguson was convicted of unlawfully possessing intoxicating liquor, and he appeals. Affirmed.

Nat Llewellyn, of Marlin, for appellant.

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

MORROW, P. J.

The offense is the unlawful possession of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of one year.

The unlawful manufacture of intoxicating liquor and the possession of such liquor were charged in separate counts. The count charging possession alone was submitted to the jury. The related nature of the offenses and the evidence adduced in support of each of them were such that there was not error in refusing at an earlier stage of the trial to require the state to elect between the counts. Gonzales v. State, 12 Tex. App. 663, and other cases listed in Branch's Ann. Tex. P. C. p. 233.

The sheriff and others entered the house of the appellant, and found him engaged in manufacturing whisky. He told the officers that he had made some whisky and put it in a trunk. Upon this information the whisky was found by them in the trunk. The evidence was relevant on both the making and the possession of intoxicating liquor, and, having led to the discovery of the whisky, it was not inhibited by the confession statute, Code Cr. Proc. art. 810. See, also, Torrence v. State, 85 Tex. Cr. R. 310, 212 S. W. 957, and other cases listed in Vernon's Tex. Crim. Stat. 1922 Supp. vol. 2, p. 2595, note 12.

There was no error in refusing to withdraw the evidence showing that appellant manufactured the whisky in question, as such evidence was relevant on the intent for which appellant possessed the whisky which he made.

In discharging the burden which was upon the state to show that the possession of the whisky by appellant was for the purpose of sale, the manner and time of his acquiring it, the quantity on hand, the locality in which it was found and other like circumstances were available to the state. The rule excluding evidence of other offenses does not embrace those relevant on the issue of intent.

While the officers were present with appellant and before his formal arrest, he stated to them that he had "sold whisky to Bagby and others." The court instructed the jury to disregard the testimony of the officers to this fact. The conditions were such as to bring appellant in custody within the meaning of the statute on the subject of confessions. See Clark v. State, 84 Tex. Cr. R. 390, 207 S. W. 98, and other cases in Vernon's Tex. Crim. Stat. 1922 Sup. p. 2593. The declaration mentioned does not seem to have been res gestæ but to relate to a different transaction remote from the present.

The appellant became a witness in his own behalf, and voluntarily testified on...