Hightower v. State

• Decision Date: 09 November 1927
• Docket Number: (No. 11120.)
• Citation: 299 S.W. 413
• Parties: HIGHTOWER v. STATE.
• Court: Texas Court of Criminal Appeals

299 S.W. 413

HIGHTOWER v. STATE.

(No. 11120.)

Court of Criminal Appeals of Texas.

November 9, 1927.

Appeal from District Court, Panola County; R. T. Brown, Judge.

Oscar Hightower was convicted of possessing equipment for manufacture of intoxicating liquor, and he appeals. Reversed and remanded.

J. G. Woolworth and B. W. Baker, both of Carthage, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

LATTIMORE, J.

Conviction for possessing equipment for the manufacture of intoxicating liquor; punishment, one year in the penitentiary.

There are three bills of exception in the record. We are not in accord with appellant's complaint of the charge of the court for its submission of the law of principals. From the testimony it appears that two other parties were present at the time and place when appellant is charged to have possessed the equipment in question.

There was an exception taken to the charge of the court for its failure to submit the law of circumstantial evidence. We are of opinion that the case rests upon that character of testimony. Officers had found some mash and a still. After an absence, they returned to the spot, and some of their number went near enough to satisfy themselves that the still was in operation. The officers then advanced upon the party at the still. Three of the posse testified. One of them said that, as he ran toward the still, he saw appellant pouring corn whisky into a five-gallon container. In another place the same witness testified that what he saw the defendant do was that he was pouring, "I guess it was whisky — it was — in that little copper outfit." In another place the witness testified:

"Yes; I just saw him as I was running up. Asked if it was my impression that he was pouring something in this keg, I will say he was pouring something in there; I don't know what it was; I guess it was whisky; I wouldn't say it was whisky — well, I will say it was whisky, it smelled like that."

Neither of the other two officers who testified gave evidence of anything done or said by appellant, except that he ran away from the place where the still was, waded a creek, and got away. It was shown that there were two other men at the still beside appellant. On this testimony the question arises as to the extent to which same goes to establish the factum probandum in the case; i. e., the possession on the part of appellant of equipment for the manufacture of intoxicating liquor. That he was present at the...