Goforth v. State

• Decision Date: 21 January 1925
• Docket Number: (No. 8540.)
• Citation: 269 S.W. 98
• Parties: GOFORTH v. STATE.
• Court: Texas Court of Criminal Appeals

269 S.W. 98

GOFORTH v. STATE.

(No. 8540.)

Court of Criminal Appeals of Texas.

January 21, 1925.

Rehearing Denied February 25, 1925.

Appeal from District Court, Parker County; F. O. McKinsey, Judge.

Herman Goforth was convicted of manufacturing intoxicating liquor, and he appeals. Affirmed.

Oscar H. Calvert, of Dallas, and Carter & Queen, of Weatherford, for appellant.

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

HAWKINS, J.

The conviction is for manufacturing intoxicating liquor; punishment being one year in the penitentiary.

There is no merit in the contention that the indictment should have been quashed, because the state law is in conflict with the federal Constitution and acts of Congress. Ex parte Gilmore, 88 Tex. Cr. R. 529, 228 S. W. 199. The same question has been decided some 30 or more times by this court, following Gilmore's Case, and by the Supreme Court of the United States in Chandler v. State of Texas, reported in 260 U. S. 708, 43 S. Ct. 247, 67 L. Ed. 475; also in Vigliotti v. Pennsylvania, 258 U. S. 403, 42 S. Ct. 330, 66 L. Ed. 686, and United States v. Lanza, 260 U. S. 377, 43 S. Ct. 141, 67 L. Ed. 314. It would seem that this ought to be settled, but the point continues to be raised.

Appellant and one Frank January were separately indicted for joint participation in the same offense. Each filed motions for severance, asking that the other be tried first. The court ordered that appellant be first tried. This was in accord with article 727, C. C. P., giving the court authority under such circumstances to direct the order in which they should be tried.

Continuance was sought by accused on account of the absence of some 13 witnesses. All but four of them were character witnesses for appellant. Many witnesses did testify as to the good character of defendant, which issue was not controverted. The four fact witnesses, for whom continuance was requested, were Gault, Probes, Robason, and McNalley. The first three named appeared in court and were sworn as witnesses. Robason was used by appellant; Gault and Probes were available, but were not called. Another witness (Childress) testified to the same facts which it was proposed to prove by McNalley. In view of the entire evidence, which the court had before him in passing upon the motion for new trial, we think no error was committed in denying the continuance. The diligence as to McNalley is doubtful. The application states that he was served with process, and that the subpœnas were attached; but none appear in the record. It is not shown that any further effort was made to secure McNalley's presence, when he was found to be absent when the witnesses were called.

The indictment avers that appellant manufactured intoxicating liquor on or about the 30th day of July, 1923. Sheriff Gilbert testified that about the 22d or 23d of July he was passing near the premises of appellant's father, and detected a smell which caused him to make an investigation; that in a branch or draw some distance from the road he found 9 barrels containing meal and chops, yeast, and sugar and water. He also found empty barrels, some in the branch, and some out on the ground. This locality was watched by the officers from that time until the evening of the 30th of July. Gilbert went to the premises between 5 and 6 o'clock on that date and saw a still being operated by appellant and Frank January. One of them was pouring mash into the still, and the other taking the whisky as it ran out and pouring it in a barrel. The sheriff made no arrest at this time, but went back to Weatherford. He secured other officers, and returned to the locality of the still about dark. The sheriff approached close enough to the still at that time to see that it was yet in operation. He saw two persons there, but could not positively identify them at this time, it being dark. The sheriff went back to get the other officers, and when all of them approached the still the parties who had been operating it were gone. The officers remained on watch. About daylight appellant and January were seen coming from towards appellant's house in the direction of the still. As they got near the still, one of them said, "We got to hurry and get through this morning if we get on the job," to which the other replied, "Yes; we can get done." When they got to the still, appellant got a bucket of water and went to a barrel. About this time the officers made the arrest.

Appellant...