Zulkoski v. State

BAKER, Judge. The appellant was convicted in the District Court of Brazos County for the offense of unlawfully manufacturing intoxicating liquor and his punishment assessed at one year in the penitentiary. The facts briefly stated are that the sheriff, his deputy and *503 some other parties went to and searched the premises of the appellant and there found a barrel which they contended contained mash, an oil can which was contended by the State that was used for manufacturing intoxicating liquor and which said witnesses for the State testified had substance like mash in it and was warm, and that they also found some whiskey in the house of said appellant and some yeast cakes. The appellant testified in his own behalf and introduced other testimony corroborating him to the effect that said barrel with what purported to be mash in it was hog feed and that he kept the barrel for that purpose and had feed mixed up in it in the way of chops, bran and other ingredients with which to feed his hogs and that the five gallon can above mentioned was used by his wife for the purpose of heating water for washing and scrubbing purposes and that his wife had been in bad health for many years and that he had bought the wiskey found on his premises from a negro for medicinal purposes alone. Appellant introduced several witnesses including a doctor as to the condition of his wife’s health and that she had been in bad health a long time and the doctor had advised that whiskey would be good for her condition. Appellant’s witnesses also testified that the yeast cakes were made and used by his wife for bread making purposes. This is a sufficient statement of the facts for a discussion of this case. In bills of exceptions 1, 5, 6, 7 and 8, complaint is made to the action of the Court in permitting the State’s witnesses to testify as to the intoxicating qualities of the whiskey in question upon the ground that they were not shown to be sufficiently qualified for that purpose. There was no error made in overruling these objections because same went more to the weight than to the admissibility of the testimony. In bills of exception 2, 3, 4 and 9, complaint is made to the action of the court in admitting in evidence utensils and vessels alleged to have been taken from the premises of the appellant, because it is contended that same were not sufficiently identified. We are unable to agree to this contention and are of the opinion that said objections went more to the weight than to the admissibility of said testimony. In bill of exception No. 10, appellant complains of the action of the court in permitting the State to introduce in evidence the testimony of the former Sheriff Morehead, deceased, given upon the examining trial of the defendant. This bill is insufficient to show error in that it does not contain a sufficient statement of the facts to show of itself any error therein and as *504 presented we will have to presume court’s action in the admission of said testimony was correct. Bill of exceptions IOV2 complains of the action of the court in permitting the State’s witness Wheeles to testify in eifect that the appellant’s wife attempted to take the whiskey away from the witness who had it in charge at appellant’s premises immediately after said raid, and because the court in reply to the objection made by appellant’s counsel to the eifect that the appellant’s wife had not denied making such an attempt and that the State’s witness Williams had testified to practically the same eifect and that said testimony was not admissible for rebuttal purposes, “that the defendant had denied it.” We are of the opinion that there is no error shown in this bill for the reason that practically the same testimony was given by the State’s witness Williams and the remark of the court to counsel’s objection that the defendant had denied same was not such a comment on the weight of the testimony as would likely be harmful to the defendant before a jury in this instance. In bill of exceptions No. 11, complaint is made to the refusal of the court to give in charge to the jury appellant’s special charge No. 6 on circumstantial evidence. The court in his general charge covered this phase of the case fully. In bills of exception 14 and 15 appellant complains of the action of the court in refusing to peremptorily instruct the jury to return a verdict of acquittal. We are of the opinion that the court rightfully refused these charges requested and properly left the facts to the jury to determine. It is contended by the appellant in this case that the evidence is insufficient to sustain a conviction and that the whiskey found on appellant’s premises was properly explained and the mash found in the barrels and in the five gallon oil can as testified to by the State’s witness was overcome by the testimony of the appellant, his wife and children. We are unable to agree with appellant in this contention. The court has frequently held that the jury is not bound to accept the testimony of the defendant or parties deeply interested like the defendant’s family in this case, where there is any conflict of testimony on the issues as herein presented. After a careful examination of the entire record, we are unable to say that the evidence was not sufficient to warrant the jury in reaching a verdict of guilty in this case and for the reasons above stated we are of the opinion that the judgment *505 of the trial court should be affirmed and it is accordingly so ordered. Affirmed. The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.