250 S.W. 691 | Tex. Crim. App. | 1923
Appellant was convicted in the district court of Llano county of manufacturing intoxicating liquor, and his punishment' fixed at one year in the penitentiary.
From the testimony of one B. M. Mays we learn that a still was in operation on the premises of Dick Wimberley. Appellant lived on an adjoining farm. Mays testified that he first saw this still on Thursday, February 17, 1922, on which occasion he went to where same was with Dick Wimberley to get some chops for the latter’s hogs. No one seems to have been at the, still on this visit. Mays testified that he went back there the Saturday morning following, and Willie Wimberley was there “with the can cooking .whisky.” Witness stayed 30 or 40 minutes, and says that while he was there appellant came from a nearby field in which he was plowing; that appellant sat down and took a drink of whisky and went back to his plow. Willie Wimberley was sitting .over,, by a tub with a- half-gallon measure, and ■“the stuff” was running into it. Witness testified that while there appellant said “it was good whisky -we are making.” On cross-examination Mays admitted that he had testified in cases already tried against Willie and Dick Wimberley, and that he did not recollect that in either trial he had attributed to John Wimberley the statement just mentioned. He also admitted that in each of said cases he swore that while he was at the .still appellant came down and just sat .around and. was not doing anything and wont on back to his plowing.
On Tuesday morning following the visit to the still just described this .witness admitted that appellant and Willie Wim-berley beat him up pretty badly, John Mays, a brother of witness, being present, and that at once after the fight witness went and phoned the officers at Llano, 12 miles distant, who came out in about an hour. Search by the officers revealed on .Dick Wimberley’s place several barrels partly filled with mash, s.ome jugs, cans, funnels, several sacks of corn chops, and a furnace' made of bricks and rocks, with a stovepipe, and having over the furnace a piece of iron with a hole in it. Others of the party who went with the officers found what they called a still, in a sack in a thicket, tree limbs having been thrown over it. This was found by means of information given by John Mays. No witness attempts to locate the place where this still was found except Mr. Johnson, the 'sheriff; his testimony plainly showing it to be hearsay in this regard. He swore that when he got back to his car after finding the furnace, etc.,, on Dick Wimberley’s'place, Fred Jackson had already found the still and brought it to the car. He does not claim that any one pointed out to him the place where the still was found. .It follows that the statement of the sheriff as to .whose land the still was on when found would necessarily :be hearsay. Fred Jackson was not asked on whose place he found the still.
We thus have the case against this appellant for manufacturing intoxicating liquor resting solely on the proximity of his farm to (he one.occupied by his brother Dick Wim-berley, on whose farm there was a liquor factory, and the testimony of B. M. Mays that appellant came to where said still was in operation, sat down, took a drink, said that was good whisky we are making, got up, and went back to his plowing. This statement attributed to appellant by Mays is so ambiguous as it appears .in' this record that it is impossible to tell whether said witness intended to say that appellant said that witness and Willie Wimberley were making-good whisky, or that it was good whisky appellant and witness -were making, or that it was good whisky appellant and Willie Wimberley were'making. We cannot afford
Whisky manufacture is an evil and a grave one, and a violation of the law. So many of the good men of this state have for years been striving to rid the country of the curse of intoxicating liquor that it seems difficult to as calmly weigh the evidence in a case of this character as would be done in other felony cases. We must do so.
We do not think the application for continuance by appellant showed diligence. It is'- hot shown that a subpoena had been issued’ in .this case for th.e witness Iva Wim-berley:; :ndr. had process been issued promptly for.any of. the other absent witnesses.'1'' .>■
Appellant was allowed to cross-examine B. M. Mays as to his recent movements, but the state’s objection to extended cross-examination as to where he had lived, etc., was sustained. The bili of exceptions does not show that appellant expected -to -obtain facts by further examination along this line showing that witness had engaged, in any occupation or had lived at any place either of which indicated moral turpitude, or that he was by reason thereof unworthy of credit. While we fully appreciate the value of the right of cross-examination into the antecer dents of a witness, still a reasonable limit must be set, and we do not think that-fixed by the learned trial court in the instant case any abuse of his discretion.
An indictment charging kindred- of*-fenses 'ih separate counts is not duplicitous.
State' witness Mays admitted that just before he phoned for the officers appellant and Willie Wimberley had beaten him up. He denied -that this fight and the beating he got actuated him in reporting appellant or influenced him while a witness. He attempted no explanation of said fight or its cause or why same occurred. Appellant sought to show that said witness was guilty of an attack upon and improper conduct with ’. his niece Ruby Mays on the'night before the fight took .place, and that his said -conduct caused the Wimberleys, who were also related to said girl, to administer -to him .said beating. We are -not prepared to say that the motives of B. M. Mays might not have been thus explored. Mr. Branch cites many cases in section 163 of his Annotated P. O. upon the proposition that the motives of a witness are never to be regarded as merely collateral, and that any testimony which sheds light on the animus or prejudice of a state witness toward the accused is admissible.
Evidence of the finding of a bottle of whisky on the premises of Dick Wimberley out in front of his house, -after the arrest of appellant, was admitted on behalf of the state. The wife of B. M. Mays testified that she was with Pauline Wimberley when the latter took said bottle and hid it where the officers found it. Appellant offered as a witness Pauline Wimberley to show that the bottle of whisky w.as in fact hidden at .said place by Alice Mays, who got it out of the car of B. M. Mays. The state objected to this testimony on the ground that the rule had been invoked, and that Pauline Wimber-ley had been in the courtroom during the trial. Appellant’s counsel then stated that the testimony of Mrs. Alice Mays'came as a-surprise, arid that they were not aware that she would so testify. Nothing is presented showing bad -faith in this statement -on’the part of appellant’s counsel, and-we think-the testimony should hav.e .been..admitted.".'.