Wilkerson v. State

• Decision Date: 06 December 1922
• Docket Number: (No. 7252.)
• Citation: 245 S.W. 430
• Parties: WILKERSON v. STATE.
• Court: Texas Court of Criminal Appeals

245 S.W. 430

WILKERSON v. STATE.

(No. 7252.)

Court of Criminal Appeals of Texas.

December 6, 1922.

Appeal from District Court, Ellis County; W. L. Harding, Judge.

Ester Wilkerson was convicted of manufacturing intoxicating liquor, and appeals. Affirmed.

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

LATTIMORE, J.

Appellant was convicted in the district court of Ellis county of the offense of manufacturing intoxicating liquor, and his punishment fixed at 1½ years in the penitentiary.

The state introduced Gus Mitchell and Mary Mitchell, who testified that appellant brought a still to their house and set it up and made whisky. On one occasion he made about five gallons and on another occasion he made two gallons. Each of said witnesses drank the liquor, and appellants seems to have given them a part of it. There is other testimony in the record which would seem to indicate sufficient connection of said witnesses with the commission of the crime to have justified the court in submitting to the jury the question of their being accomplices. The court did not charge on the law of accomplice testimony. Appellant asked a special charge submitting this issue to the jury, which was refused, and a bill of exceptions was taken. We would uphold appellant's contention but for the further fact, apparent from the record, that appellant himself testified, admitting fully that at the home of said Mitchells he made the liquor testified about by them. From appellant's testimony we quote:

"I found the still that was at Gus Mitchell's one day while I was in Chambers Creek bottom hunting. It was hid under some brush. After I went home I got my father's car and went down there, got the still, carried it up to my father's house and hid it. This was a short while before Christmas, 1921. I got some corn chops there in Italy, and took some sugar from my father's store, and got a barrel that was setting in an alley back of Mr. Kauthen's store there in Italy, and one night I took them all over to Gus Mitchell's house and put them in a little smoke house and locked them up. A few days before Christmas I went over there and put the still up in Mary Mitchell's kitchen one night, and ran off about five gallons of corn whisky. I gave Mary and them about a half a gallon of it and took the balance of it over home (my father's) and we all drank it up. That was my cousin, myself, and the family. I never sold any of this whisky to any one and never tried to sell it to any one and...