Johnson v. State

• Decision Date: 12 November 1924
• Docket Number: (No. 7641.)
• Citation: 266 S.W. 155
• Parties: JOHNSON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 155

266 S.W. 155

JOHNSON v. STATE.

(No. 7641.)

Court of Criminal Appeals of Texas.

November 12, 1924.

Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.

B. H. Johnson was convicted of manufacture of intoxicating liquor, and he appeals. Reversed and remanded.

S. M. Adams, of Nacogdoches, for appellant.

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

HAWKINS, J.

Conviction is for the manufacture of intoxicating liquor with punishment assessed at one year in the penitentiary.

The facts, condensed, follow: On August 25, 1922, officers went to a point on a branch in a pasture belonging to one Hyatt. They found 14 barrels of mash, and a still which was not in operation at the time. Across the branch to the south under some brush they found two and a half gallons of whisky in jars. Hyatt was working around the still, apparently emptying it and pouring the contents into barrels. The first time appellant was noticed by the officers he was some 10 or 15 steps east of the still; was standing facing it and had apparently been coming in that direction. He was not seen by the officers to do anything around or in connection with the apparatus. A witness by the name of Dee Phillips testified that about three weeks prior to the incident testified to by the officers he saw Hyatt, James, and appellant at the point where the still was found by the officers with a wagon and 12 barrels; that he was some 50 or 60 yards from them at the time, but that the next day he went to the place and then found 14 barrels with some mash in them, also a copper still in a sack secreted in a tree or bush. On Wednesday prior to the arrest this same witness claims to have seen the same three parties at the same place, the still at that time being in the bed of the branch with a fire under it. Much evidence was introduced questioning the correctness of the statement of Phillips as to the presence of James and appellant at the still on Wednesday prior to the raid by the officers. A great deal of testimony was to the effect that on that day these two parties were at a different place. Appellant's own testimony, supported in some respects by other witnesses, accounted for his presence near the still at the time of the raid as follows:

He claimed that while at the store on that morning he had been told there was good fishing at a particular point on the river, and that he had started to this place for the purpose of fishing; that the nearest and most direct route from his home to the river was down the branch on which the still was found; that he did not know of the presence of the still, had not been there prior to that time, nor had any connection therewith; that just before he reached the still he met James who said he would go fishing with him and who told appellant that Hyatt was down there; that appellant told James he would wait for him where Hyatt was; that as he approached the point where the still was located he recognized the sheriff and asked him what he was doing down there and the sheriff replied that he was hunting for a "shinney mill."

Under the foregoing state of the evidence the district attorney was permitted to prove by witness Rogers, over appellant's objection, that some four months prior to the raid and arrest of the parties witness was on his way to Nacogdoches in his wagon; that, as he passed appellant's house, the latter came out and got in the wagon, having with him some whisky in a fruit jar and other whisky in a box. This evidence was objected to as showing an independent offense long prior to the transaction under investigation, having no connection therewith and throwing no light thereon. Our present statute relative to illegal transactions in connection with intoxicating liquor is so comprehensive in its scope and denounces as separate offenses so many different phases which necessarily intermingle with other offenses of similar character that this court finds it difficult to make application of the well-established rules regarding proof of other offenses. Where an illegal sale of liquor is charged, we think the limitation as to showing other sales is properly announced in Burton v. State, 93 Tex. Cr. R. 335, 247 S. W. 869. and the authorities cited therein; but the principle upon which those decisions rest does not apply here, and we must look to the general rule permitting proof of other crimes to see if the evidence here complained of comes within any of the exceptions. Mr. Branch, in his Annotated Penal Code, p. 1285, § 2347, concisely, and we think correctly, says:

"Proof of other offenses is admissible if (1) such proof is a part of the res gestæ of the alleged offense for which defendant is being tried; (2) or if it tends to show intent when intent is an issue; (3) or serves to prove identity when identity is an issue; (4) or when it is sought to show the guilt of defendant by circumstantial evidence, and such proof of another offense connects or tends to connect the defendant with the alleged offense for which he is being tried; (5) or when it tends to defeat the defensive theory."

There was no question of identity nor of res gestæ, and subdivisions 1 and 3 may be dismissed. The learned trial judge appears to have admitted this evidence under the second subdivision of the rule stated on the question of appellant's intent. In his explanation to the bill he adverts to the fact that appellant had been seen at or near the still a few days before the raid by the officers, and accounted for his presence at the time of the raid by explaining that he was "going fishing" and that his route carried him by where the still was located, and states that Rogers' evidence was admitted as bearing on the "innocent intention" of defendant.

Where "intent" is necessarily an element of the offense charged and that becomes an issue upon the trial, then proof of other offenses which throw light upon the intent of accused in the...