Newton v. State

• Decision Date: 22 November 1922
• Docket Number: (No. 6661.)
• Citation: 251 S.W. 240
• Parties: NEWTON v. STATE.
• Court: Texas Court of Criminal Appeals

251 S.W. 240

NEWTON v. STATE.

(No. 6661.)

Court of Criminal Appeals of Texas.

November 22, 1922.

Rehearing Denied May 16, 1923.

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

Jep Newton was convicted of manufacturing intoxicating liquor, and he appeals. Affirmed.

Wynne & Wynne and Cooley & Crisp, all of Kaufman, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

HAWKINS, J.

It was charged by indictment that on or about the 12th day of February, 1921, accused manufactured intoxicating liquor. Upon the trial he was convicted, and his punishment assessed at two years' confinement in the penitentiary.

Appellant lived upon his father's farm, which consisted of a large tract of land. The house in which appellant lived was about 50 or 75 yards from that of his father. The latter was an elderly man, very feeble, and confined most of the time to the house. The officers found in a cave, which had been dug in the bank of a ravine, a still, tub, copper coil, oil tank, and other equipment exhibited before the jury. There were 19 50 or 60 gallon barrels, 13 of which contained sour mash. The tub contained dried grapes, raisins, and large green grapes, all in a sour condition. This equipment, when connected could be used for the manufacture of whisky. The cave was 40 feet long, and was some 150 or 175 yards from appellant's house. The first trip the officers made to the place was on Saturday night, at which time there were 12 or 13 fruit jars in the cave. The second trip was made Tuesday following, at which time only 2 or 3 fruit jars were present, and some mash appeared to have been taken out of one of the barrels. The evidence fails to disclose upon what information the officers first visited the cave, but the statement of facts reveals that about Christmas a boy 16 years old had accidentally discovered the cave in question. A few days before this lad was called before the grand jury appellant had talked to him and told him that he did not want him to say anything about finding the cave. It is apparent from the evidence of this boy that appellant knew he had been or would be summoned before the grand jury at the time he had this conversation with him, and also shows that after he had been before the grand jury appellant had another conversation with him in which he denied telling him not to say anything about the cave, but that what he told him was, "If you did not find a big cave, not to say anything about it." The evidence further reveals that along in December appellant had negotiated with a merchant for the purchase of several dozen fruit jars, giving as his reason that he anticipated a large fruit crop the next year, and was wishing to purchase the fruit jars in an off season when he could get them cheaper. Appellant and this merchant were not able to agree upon the price, but it was shown that about the same time he purchased two dozen fruit jars from another merchant. It was also in evidence that along about this time appellant had made sales of whisky to a number of parties, and had told others that he had whisky, some of whom declined to purchase. All of the whisky sold by appellant was delivered in fruit jars. It was also in evidence that appellant approached a witness who was in the hardware or plumbing business some time in the fall preceding the discovery of the still and told him he wanted to solder a gasoline tank and made some inquiry with reference to the materials to use for that purpose. Where soldering was used in the equipment found it appeared to have been done in a very crude manner. This is a sufficient statement of the facts.

Application for continuance was presented based upon the absence of three witnesses. This was the second application. At the preceding term of court on March 7th, the case had been continued by appellant on account of an absent witness, and at that time the case set down for a day certain, July 7th, in the next term. No further effort was made to secure the witness for whose absence the case had been continued, and not until July 6th, one day before the case was set for trial, was process requested for the three new witnesses for whom the present continuance is sought. There is an utter lack of diligence.

Prior to calling the instant case appellant had been tried upon charges for selling liquor. In examining the jury upon their voir dire in this case counsel for appellant propounded the following question:

"If you are taken upon this case, will you try this defendant for this offense alone, and not hold against him any other case or cases that have been or may be tried, as he is entitled to be tried for this offense and this offense alone?"

The county attorney objected to the question, which objection was sustained by the court, the court remarking at the time, "Those cases might become an issue in this case." Exception was taken to the remark of the court, it being contended that the judge in effect told the jury in making such remark that they could try the defendant in this case for the other cases against him. In explaining the bill the court says he asked the jurors if they would try the case according to the law submitted to them in the charge of the court, to which they answered in the affirmative; that the ground upon which the county attorney objected was that the sales of whisky made by appellant might become an issue in the instant case to show the purpose for which the liquor was manufactured. We do not regard the remark of the court as subject to the interpretation placed upon it by appellant. It was in no sense an intimation to the jury that they could try accused for any offense, except that for the manufacture of intoxicating liquor, and contained no intimation by the court of his view upon the weight to be given any testimony which might be introduced.

Serious objection was urged to proof made by the state that the still and other apparatus found by the officers and exhibited before the jury were found upon the premises of W. A. Newton, appellant's father. The court committed no error in admitting this testimony. Appellant lived upon his father's premises and near the latter's residence. His father was shown to be an aged man, in bad health and confined to the house a great portion of the time. The cave in which the still was found was in the vicinity of both of the houses. Appellant's connection with the still and the manufacture of the liquor was shown by circumstances which authorized the jury to return the verdict reached by them.

Proof was made by the state of several sales of whisky made by appellant shortly before the discovery of the still. This testimony was objected to on the ground that the charge upon trial was for the manufacture of liquor only, and that proof of sales was inadmissible. The decisions are against this contention. Anderson v. State, 91 Tex. Cr. R. 183, 238 S. W. 221.

This prosecution having arisen at a time when the purchaser was an accomplice, it was also permissible for the state to support the testimony of the accomplice purchaser by any legitimate evidence obtainable, whether by proof of circumstances or direct testimony, tending to establish the sale. It therefore follows that the court properly refused the special requested charges directing the jury not to consider the evidence showing sales, and also refusing those limiting the corroborating evidence to establishing the sales only, because, where the corroborating evidence itself established a sale, it was pertinent to the main issue of manufacture.

Appellant took the position that proof of sales made by him was only a circumstance going to show the probable manufacture by him of the liquor sold. Thus far he was correct; but he further contended that the jury should be instructed, in effect, that although the sales by him were established these circumstances should not be considered against him, unless it had been shown beyond a reasonable doubt that he did manufacture the liquor. Special charges were requested to that effect. In this latter contention he went beyond the law. If the state could establish beyond a reasonable doubt that appellant manufactured the liquor, independent of the evidence that he was selling it, we fail to see how proof of the sales would be any necessary aid in showing the manufacture. The sales were pertinent on the issue of manufacture. They had probative force, not only in tending to prove that appellant was engaged in the manufacture, but the purpose thereof as well. Of course, proof only that appellant was selling liquor would not be sufficient to establish that he was manufacturing it; but the fact of the sales could be considered by the jury in connection with all the other facts and circumstances in evidence in determining the main issue. The court properly refused the special charges.

The purchaser of intoxicating liquor being an accomplice under the law at the time the matter inquired about in the present investigation arose, the court instructed the jury that the witnesses Chriswell, Davis, and Scott were accomplices in the purchase of whisky to which they had testified. Appellant contended that the witness Clarkson was also an accomplice, and that the court should have also instructed the...