Howard v. State

• Decision Date: 15 June 1921
• Docket Number: (No. 6345.)
• Citation: 233 S.W. 847
• Parties: HOWARD v. STATE.
• Court: Texas Court of Criminal Appeals

233 S.W. 847

HOWARD v. STATE.

(No. 6345.)

Court of Criminal Appeals of Texas.

June 15, 1921.

Rehearing Denied October 12, 1921.

Appeal from District Court, Kaufman County; Joel R. Bond, Judge.

Gene Howard was convicted of unlawfully manufacturing intoxicating liquor, and he appeals. Affirmed.

Cooley & Crisp, of Kaufman, for appellant.

H. R. Young, Co. Atty., of Kaufman, and R. H. Hamilton, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Kaufman county of the offense of manufacturing intoxicating liquor, not for medicinal, scientific, mechanical, or sacramental purposes, and his punishment fixed at confinement in the penitentiary for a period of five years. The record is before us without any exception taken to the court's charge, and without any request for special instructions, and without a bill of exceptions to the introduction or rejection of any evidence. In his motion for new trial appellant complains that he was convicted on the uncorroborated testimony of accomplices; also that the trial court failed to tell the jury that certain witnesses were accomplices, and did not submit to the jury the issue as to whether such witnesses were accomplices, and did not submit the law of accomplice testimony; that appellant had no opportunity to procure counsel; and that the evidence does not support the conviction.

We do not think this record discloses a case resting on the uncorroborated testimony of an accomplice or accomplices. The main state witness was a young girl who lived in the house with appellant's mother, in which house the alleged manufacturing of liquor took place. This girl testified fully to appellant's manufacture of such liquor on more than one occasion. The only ground upon which any claim is put forward by appellant that she was an accomplice rests on her statement that she tasted said liquor and on some occasions drank a little of same, and that she was present at the time the liquor was made. The mere presence of a witness at the time of the commission of an offense does not call for an instruction on the law of accomplice testimony, or constitute such witness an accomplice. Smith v. State, 28 Tex. App. 309, 12 S. W. 1104. In our opinion, the fact that said witness stated that she had tasted the liquor in question, and drank a portion thereof, would not make her an accomplice. The state introduced evidence of officers to the finding in the house of appellant's mother of the apparatus identified and described by the girl as being that with which the liquor was manufactured. As far as we may determine from the evidence and the testimony of the witnesses, said apparatus appeared to be amply sufficient for the purpose for which it was apparently used. Said apparatus was introduced in evidence before the jury.

In the record appears the testimony of one Jerry Williams that on different occasions, about the time appellant is charged to have manufactured said liquor, said witness had bought certain quantities of same from appellant. The fact that one purchases intoxicating liquor from one accused of the manufacture thereof might be admissible as corroborative of the fact of such manufacture, and also as illustrative of the fact that such manufacture was not for one of the excepted purposes. The fact of...