Schwab v. State

• Decision Date: 23 December 1925
• Docket Number: (No. 9668.)
• Citation: 278 S.W. 427
• Parties: SCHWAB et al. v. STATE.
• Court: Texas Court of Criminal Appeals

278 S.W. 427

SCHWAB et al. v. STATE.

(No. 9668.)

Court of Criminal Appeals of Texas.

December 23, 1925.

Commissioners' Decision.

Appeal from District Court, Lipscomb County; W. R. Ewing, Judge.

Henry and Gertrude Schwab were convicted of manufacturing intoxicating liquor, and they appeal. Reversed and remanded.

Frank Willis, of Canadian, for appellants.

Sam D. Stinson, State's Atty., of Austin, and Nat Gentry, Jr., Asst. State's Atty., of Tyler, for the State.

BAKER, J.

The appellants, Henry and Gertrude Schwab, were jointly charged and convicted in the district court of Lipscomb county of the offense of unlawfully manufacturing intoxicating liquor, and their punishment each assessed at two years in the penitentiary.

The record discloses that the officers made a raid and searched the house occupied by the appellant and his wife, and found a still in operation, and about a half a gallon of whisky, and no one present at the house except the appellant's wife, Gertrude Schwab, at the time; Henry Schwab being out in the field hauling feed. They were both arrested by the sheriff and his deputies, and the still was confiscated. The appellant Gertrude Schwab took the stand and admitted manufacturing the whisky, but contended that same was for medicinal purposes. This is a sufficient statement of the facts for a basis of this opinion.

By bill of exceptions No. 1 appellants complain of the action of the court in permitting the district attorney, over their objection, on cross-examination of the appellant, Gertrude Schwab, relative to the time of being arrested by Sheriff Roberts, to ask her the following question:

"When Ben Roberts took you away from the house that morning, why didn't you tell him you were making whisky for medicinal purposes?"

To which the appellant answered:

"He didn't ask, that is the reason; if he had asked, I would have told him."

The district attorney further asked said witness:

"When they found that still there and they arrested you, why didn't you tell them you were making it for medicinal purposes?"

To which she replied:

"They didn't ask, and for that reason I didn't have no reason to tell them."

The appellants contend that this was reversible error, because said appellant was under arrest at the time, and the state had no right to use her silence against her, and that the law did not require her to make any statement to the arresting officers. We think the learned trial judge was clearly in error in admitting this testimony under the rule laid down by this court in the cases of Thompson v. State, 88 Tex. Cr. R. 29, 224 S. W. 892; Ripley v. State, 58 Tex. Cr. R. 489, 126 S. W. 586; Ritter v....