Phillips v. State

• Decision Date: 17 February 1926
• Docket Number: (No. 9768.)
• Citation: 283 S.W. 817
• Parties: PHILLIPS v. STATE.
• Court: Texas Court of Criminal Appeals

283 S.W. 817

PHILLIPS v. STATE.

(No. 9768.)

Court of Criminal Appeals of Texas.

February 17, 1926.

Rehearing Denied May 26, 1926.

Commissioners' Decision.

Appeal from Criminal District Court No. 2, Dallas County; Charles A. Pippen, Judge.

B. J. Phillips was convicted for possessing equipment and manufacturing intoxicating liquor, and he appeals. Affirmed.

John T. Spann, of Dallas, for appellant.

Shelby S. Cox, Crim. Dist. Atty., and William McCraw, Asst. Dist. Atty., both of Dallas, Sam D. Stinson, State's Atty., of Austin, and Nat Gentry, Jr., Asst. State's Atty., of Tyler, for the State.

BAKER, J.

The appellant was convicted in the criminal district court No. 2 of Dallas county for the offense of having equipment in his possession for the manufacturing of intoxicating liquor, and his punishment assessed at one year in the penitentiary.

The record in this case discloses upon the part of the state that, when the sheriff and his deputy went to the house of the appellant, they found a 25-gallon still set up, warm, and some whisky running or had run out of said still into a 10-gallon jar. They also found about 60 gallons of mash in the house and room where the still was located. Said officers testified that they found the appellant in the back yard in a state of intoxication, and, when he was asked what he had done with the whisky, replied that it had been poured out.

It was contended upon the part of the appellant that he found the still in question, and had attempted to install it and make whisky from the mash found in the house, but his efforts were unsuccessful, and that he had been trying to make it for his own personal use, on account of suffering from lung trouble.

Appellant complains of the action of the court in refusing to submit a charge on circumstantial evidence. Under the facts of this case there was no issue raised authorizing such a charge. The undisputed and positive evidence in the record shows the appellant had the equipment in his possession, and, under such facts, it was not error to refuse such a charge. Branch's Ann. P. C., § 1874, p. 1039. Pabst v. State, 96 Tex. Cr. R. 617, 259 S. W. 577.

Complaint is made to the remarks of the assistant district attorney in his closing argument to the jury, as shown by appellant's bills of exceptions, which are qualified by the court showing that some of the objectionable remarks were withdrawn from the consideration of the jury, and the other remarks complained of were in answer to the argument of the defendant's counsel. As presented and qualified neither of said bills shows any error.

Complaint is also made to the action of the court in permitting the deputy sheriff to testify to the statements of the appellant made at the time of the arrest and the discovery of the still in question, to the effect that the whisky was thrown out. There was no error in the admission of this testimony, and same comes clearly within the rule of res gestæ, as shown by the court's qualification of said bill. Stone v. State, 98 Tex. Cr. R. 364, 265 S. W. 900.

Appellant complains of the action of the court in not permitting him to testify the reason why his friend from Alabama furnished the money with which to buy the mash in question if he (the appellant) was able to do so. This bill states that said appellant would have testified that his financial condition would not permit him to take the risk of loss, and that his friend had not convinced him that whisky could be made with said equipment. This bill, as presented, shows no error in the rejection of said testimony by the court at the instance of the state.

Objection is also urged to the action of the court in refusing to permit the appellant to testify in his own behalf what a pint of whisky would cost in Dallas, and what he (appellant) earned per day. We fail to see how the admission of this testimony would throw any light on this case, and are of the opinion that the court properly excluded same.

Appellant complains of the action of the...