Thielepape v. State

• Decision Date: 04 May 1921
• Docket Number: (No. 6212.)
• Parties: THIELEPAPE v. STATE.
• Court: Texas Court of Criminal Appeals

231 S.W. 769

THIELEPAPE v. STATE.

(No. 6212.)

Court of Criminal Appeals of Texas.

May 4, 1921.

Rehearing Denied June 8, 1921.

Appeal from District Court, Parker County; F. O. McKinsey, Judge.

Robert Thielepape was convicted of having in possession equipment for the manufacture of intoxicating liquor not for medicinal or other lawful purposes, and he appeals. Judgment affirmed.

Baskin, Dodge & Bishop and Sam S. Beene, all of Fort Worth, for appellant.

R. H. Hamilton, Asst. Atty. Gen., for the State.

HAWKINS, J.

It appears from the records before us that appellant was charged in three indictments with, (a) being in possession of equipment for the purpose of manufacturing intoxicating liquor; (b) with the manufacture of the same; (c) with being in possession of intoxicating liquor in violation of the law. These three cases, by agreement of counsel representing the state and the defendant, were tried at the same time before the same jury; three separate charges submitted the law applicable to the cases, and three verdicts were returned. This is an unusual method of disposing of felony cases in the trial court. We find in the three separate records only one statement of facts. This is objectionable, and hampers this court seriously in the discharge of its duties; it is a practice which attorneys may fall into that the court cannot countenance. We will consider the statement of facts in this instance, but wish to give proper warning that a statement of facts hereafter must accompany the record in each case regardless of the agreement of defendant and counsel for the state.

The conviction in the case now under consideration was under an indictment charging that appellant had in his possession equipment for the manufacture of intoxicating liquor, not for medicinal, sacramental, mechanical, or scientific purposes. The equipment is described in the indictment to be one kettle, one worm, and trough, one funnel, ten barrels, and one furnace. Appellant was convicted and his punishment assessed at confinement in the penitentiary for one year.

The issues presented by appellant in his motion to quash the indictment have all been decided adversely to his contention in Ex parte Gilmore, 228 S. W. 199.

Error is assigned because the court overruled the first application for continuance, based on the absence of witnesses Ed Tackson, R. A. Moore, and Earl W. Silby. The qualification to the bill shows that on October 14, 1920, this case was set down for trial for October 26th; subpœnas were not requested for these witnesses until October 20th, no excuse for the delay in having process issued appears from the bill. We are inclined to think there was a lack of diligence in securing process. However, if these witnesses had been present and had sworn to all that is claimed they would, and the jury had believed it all to be true, it is not likely any different verdict would have been reached.

The statement of facts discloses that the appellant some time between the 1st and 15th of April, moved upon a small farm, known as the Marti place, and resided there until the 23d of June, when an investigation by the officers resulted in these prosecutions being filed against appellant. Marti, who had formerly lived on this place, moved away in the fall, and between the time he left and appellant's occupation of the premises two young men had been living on the place. The evidence shows that neither they nor appellant had ever been seen doing any farm work while they were living upon the premises. There were two barns on the place, a small and large one. The mother of appellant's wife lived in Fort Worth, and it was the practice of appellant and his wife to make frequent trips from their home to the city of Fort Worth ostensibly to visit the mother. These trips were made in a five-passenger Ford car, and once or twice each week. Early in the morning of the 23d of June the sheriff and other officers visited the appellant's place, he being absent at the time on one of his trips to Fort Worth. In the large barn, under some hay, they discovered three five-gallon jugs, two of them being full of corn whisky, and the other partially filled. There was also discovered at the same time, concealed under the hay, a kettle with a capacity of about thirty gallons. One of the officers, in walking over the hay, stepped in the kettle, and it was discovered in this manner. In the small barn there was a partition. In one side of it there was a furnace and a worm in a trough, the trough being about 15 feet long made out of 1 by 12 inch lumber, through which there ran two copper tubes or worms. They also found three or four empty five-gallon jugs under the kitchen floor. The furnace described was a large one, being some 6 feet long, and would accommodate the kettle found in the large barn. The furnace was so arranged that a pipe ran from it out at the east or back end of the barn, so the smoke from the furnace would go out near the ground on the east or back side. In the other portion of this small barn were found nine or ten barrels full of mash. In two or three of these barrels the mash had ceased working, had settled down, and was clear, but in the others it was still fermenting. Three sacks of meal were found at the same place the barrels were discovered. The evidence discloses that from six to twelve days are required for this mash to go through fermentation and settle sufficiently to be used in the further process of making whisky. One witness testified that his premises joined the Marti place, and that on one occasion he went down there on some business, and in looking for the parties passed the back end of the small barn, and noticed the same to be all smoked up, and observed the pipe coming out near the ground. He testified that the smoke looked to be tolerably fresh. This witness also testified that during the time appellant lived there, he had, on more than one occasion, while in the field plowing, detected an odor coming from the direction of the barn in question, which smelled like bread cooking, and made him hungry. A lady testified that upon one occasion while appellant was living there she had gone to the place for the purpose of getting blackberries; for some reason they did not get out of their car; appellant's wife came out on the gallery, and witness noticed some one come around the small barn and go in the inside, and noticed smoke coming from behind the barn. After the discovery had been made by the officers as hereinabove detailed, appellant was arrested about noon, as he and his wife and brother returned home from Fort Worth. In the car were found three five-gallon jugs, empty, but with the smell of...