Berry v. StateBerry v. State
- Reporters:
- , ,
- Before:
- Lattimore
Conviction in District Court of Ellis County of manufacturing intoxicating liquor, punishment one year in the penitentiary.
Officers looking for a still observed smoke arising from a wоoded locality. They divided into two groups and approached thе place. Three of them testified. All -agreed that there were two men at the place where a still in operation was found. It was in a little сlearing surrounded by thick brush. Two of the officers said as they worked their way through thе thicket and got near the place, they could hear men laughing and talking; it was drizzling rain and as they got near enough to see, two m,en appeаred to be trying to shelter themselves under trees, one of whom walked over to the still. There were five barrels of mash, and some brush between the officers and the parties. They said the man who walked over to the still was appellant and that he stooped over and went through some motions аnd seemed to them to be chunking fire. The officers stepped out in the рath and with pistols presented ordered the two men to stick up their hands, аnd they testified that the two men fled, the officers shooting at them as they ran аway. Appellant was struck by a bullet and fell and was captured. He made no statement at the time. One officer in the other group testified that аs they approached the place they saw appellant go towards the still and saw a heavier smoke arise about the time he gоt there. In addition to the still in operation, quite a quantity of material and whiskеy was found at the place.
The charge of the court was excepted to for failure to submit the issue of circumstantial evidence. A spеcial charge on this theory was presented which does not seem to us to be correct. *116 We are not able to agree with the learned trial judge in his refusal to give in charge to the jury the law applicable to a case of circumstantial evidence. Appellant testified thаt he was squirrel hunting in the bottom and came across this still, and that a man was therе whom he did not know. That he leaned his gun against a tree and engaged the mаn in a conversation, and that while he was present the officers made their raid and arrested him. He denied having any connection with the other man, the apparatus, liquor, etc. The court charged the jury that the merе presence of the accused at the place would not be sufficient, but in our opinion the guilt of the accused was an inference оnly deducible from the circumstances testified to by the officers. The land оn which the still was found did not belong to appellant, nor was he ever seen in possession of any of the material, paraphernalia or manufactured product at any other time or place. No sale by him was in testimony. - No act of his further than that it might be inferred from the testimony of the offiсers that he was chunking the fire, that he was present and that he tried to esсape from the officers, seems in the record. Appellant was corroborated on the proposition that not very long before thе arrest‘he was seen by several people with his gun going toward the woods and that he told said parties he was going squirrel hunting. We think the refusal of the cоurt to submit the law of circumstantial evidence such error as to call fоr reversal. Bookout v. State, 95 Texas Crim. Rep., 562; Daniel v. State, 95 Texas Crim. Rep. 649. The court correctly submitted the case on the theory of principals, but we have held that in such case if the facts demand it there should be a charge on circumstantial evidencе. Ellsworth v. State, 92 Texas Crim. Rep., 336.
For the error mentioned the judgment will be reversed and the cause remanded.
Reversed and remanded.