McAnally v. State

LATTIMORE, Judge. Conviction for manufacturing intoxicating liquor; punishment, one year in the penitentiary. We find no brief on file for appellant. There are two bills of exception. The first complains of the fact that a juror was permitted to sit in the trial of appellant who had been a juror sitting in the trial of another man charged with the same offense, who was tried on the same day and prior to the instant trial. We have carefully *323 examined the testimony heard in connection with the motion for new trial upon this point. The, same attorney represented each of the defendants in said cases. The juror in question was not asked any individual question which. it is claimed that he answered falsely. No question was asked said juror apparently calling for any statement that he sat upon the other case. The juror did state that he had no opinion about the guilt or innocence of this appellant. There was no controversy made upon this trial of the fact that there was a large quantity of mash and whiskey and a still found by the officers upon the premises occupied by the party who was first tried. The only defensive issue appearing in this case is one which was not in the other case, viz.: that appellant had no connection with the manufacture of said intoxicating liquor so found by the officers, but that he was in fact only a hired hand employed to do farm work on the premises. It further appears from the statement of facts that in the retirement of the jury, the juror referred to took no part in the discussion of the case, and made no reference to anything that he might have heard upon the trial of the other case. We do not think the record shows the juror to have been guilty of any wrongdoing, nor that any possible injury could have resulted by reason of his being on the jury. The lowest penalty was inflicted. The other bill of exception sets out that after appellant had taken the witness stand and testified that he had no connection with the manufacture of the intoxicating liquor in question, but that he was employed the day before his arrest to work as farm hand upon the farm belonging to the party who had engaged him, and that his presence in and around the barn on the day of the raid was the result of his employment as such farm hand, — he was asked by the State on cross-examination if he was not present at a still near Fort Worth which blew up and injured him. This was objected to, but when the objection was overruled the appellant answered the inquiry in the negative. Without discussing the question of the admissibility of the testimony had same been answered affirmatively, we are of opinion that no injury was possible from the question asked, the fact embraced in the question being denied. We think the evidence sufficient to justify the jury in concluding appellant was not a farm hand, but that he was engaged as a principal with others in the manufacture of intoxicating liquor at the time and place charged. The judgment will be affirmed. Affirmed.