Rayburn v. State

• Decision Date: 31 October 1923
• Docket Number: (No. 7653.)
• Citation: 255 S.W. 436
• Parties: RAYBURN v. STATE.
• Court: Texas Court of Criminal Appeals

255 S.W. 436

RAYBURN v. STATE.

(No. 7653.)

Court of Criminal Appeals of Texas.

October 31, 1923.

Appeal from Criminal District Court, Tarrant County; Geo. E. Hosey, Judge.

L. C. Rayburn was convicted of unlawfully manufacturing intoxicating liquor, and he appeals. Affirmed.

John L. Poulter and Levi Pressly, both of Fort Worth, for appellant.

R. K. Hanger, Cr. Dist. Atty., and W. H. Tolbert and J. B. Mastin, Asst. Cr. Dist. Attys., all of Fort Worth, and R. G. Storey, Asst. Atty. Gen., for the State.

HAWKINS, J.

Conviction is for the unlawful manufacture of intoxicating liquor. Punishment, one year in the penitentiary.

Appellant lived on a farm in Tarrant county with his wife and some small children. On the morning of April 15, 1922, County Detective Rhodes, with three other officers, went to the home of appellant, and as they approached some of them saw him come from a smokehouse with a sack in his hand, going towards his residence. He set the sack down between the smokehouse and the residence. Later, upon making an examination of the sack, it was found to contain a jug which had the smell of whisky in it. Appellant was in the house by the time the officers reached there, and at the barn was a young man by the name of Brown. The officers made a search of the premises. About 300 yards from the house they found a still which was hot, full of mash, and with several barrels of mash near it. Between appellant's residence and the still was a well. A trail led from the house to the well, and from there on to the still. Near this trail was found a five-gallon bottle of corn whisky. Appellant was with Officer Rhodes at the time the still and whisky were found. After the officers had arrested appellant and were preparing to arrest Brown, appellant said to them, "Do not arrest Brown, he has nothing to do with it." In addition to the foregoing testimony, the confession of appellant was introduced in evidence. After the statutory warning, it proceeds as follows:

"My name is L. C. Rayburn. I am 29 years old. Since early in January, 1922, I have lived about five miles northwest of Mansfield, Tex., on the Morrow farm. About April 1, 1922, I went into partnership with a man named `Shorty,' whose real name I cannot now recall. He furnished a still, and I agreed to let him operate same on my place, and I was to aid and protect him all that I could. I helped him carry the water for the mash which was made, and also helped him handle the sugar and meal which he brought to my place. I was present at several runs when corn whisky was made. I got my part of the money which was made from the sale of the whisky made there, and I know what the sugar, meal, and mash was there for, and I agreed to the making of the corn whisky, accepted a part of the profits, was present at the making on several occasions, and helped him as stated above. This man `Shorty' has spent several nights with me at times when the still was in operation.

                                   "[Signed] L. C. Rayburn."
                

The state placed upon the witness stand David McGee, assistant criminal district attorney, and proved by him the execution by appellant of the confession heretofore set out. No reference was made by the state in their examination of McGee to any statement having been made by appellant which he refused to sign, but upon cross-examination appellant developed the fact that McGee at first wrote out a statement which appellant declined to sign, but did execute the one introduced in evidence. After these matters were developed by appellant, the state upon redirect examination of McGee presented to him the unsigned statement and had him identify it as being the first one he wrote and offered it in evidence. Objection was interposed by appellant that it was unsigned and therefore inadmissible, and it was excluded. While appellant was testifying in his own behalf, he was also asked by his counsel on direct examination about the two statements, one of which he had not signed. Upon cross-examination appellant was asked by counsel representing the state if, on a prior trial, he and his attorney had not introduced the unsigned statement in evidence and then wanted the jury to know what was in it. To this question he replied that he did not remember, and then the question was propounded.

"And if you didn't find out that was more convincing argument and proof of your guilt, and you now object to its introduction, and that is the reason you failed to sign it on that...