Washburn v. State

MORROW, Presiding Judge. — The offense is the unlawful manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of three years. According to the testimony of the sheriff, he and others, during the early hours of the morning, found a still for which they were searching. There were live coals under the boiler. They watched the still until daylight and then found the appellant and a woman lying upon a mattress on the ground about thirty yards distant from the still. There were found about 200 yards distant a box containing a few articles, some cooking utensils and supplies of food. The still was in perfect condition and revealed evidence of recent use. A number of fruit jars were found; and one fruit jar with whisky in it was *39 found some twenty feet distant from the still in a brier patch. Other equipment for manufacturing whisky consisting of barrels and mash were found near the still. Several of the barrels were empty; several contained mash.' In the immediate vicinity there was evidence of burning of several fires, and a number of empty cans were found in the neighborhood. The still was located in a rocky mountainous country. At the time it was captured, it had been disconnected. On the mountain was arranged a place in which a lookout could be maintained. Appellant testified that he resided about three-quarters of a mile from Copeland’s place which was nearby; that he had three children; that two of them had been visiting Mr. Copeland for several days. Mrs. Kiddy, according to the appellant, "wanted to go 11 over there” and wash, and he assisted her in taking the clothes, starch, soap, two quilts and a blanket; that when they reached the point at which the sheriff found them, he was taken sick with a spell of heart trouble and remembered nothing until the following morning. He said that he was asleep when the officers arrived; that he had not seen the still; that after -he "was attacked with the heart trouble his companion "was unable to bear the burden of carrying the clothes, and he found it necessary to lie down and take some medicine, which he did. He had gone to the place to work for Copeland and had been there but fifteen days; that he had no interest in the still. He said his health was bad and that he was subject to spells with his heai’t. The premises upon which the appellant lived, according to his testimony, belonged to Mr. Copeland and "were situated about 100 yards from his house. They consisted of a log cabin, a cellar and granary. Mrs. Kiddy and the children slept in the house while the appellant, his son and brother slept in the granary. According to the appellant’s testimony, he and Mrs. Kiddy left home at about 8:30 in the evening; that they did not take the mattress with them. There were other indictments pending against the appellant for violating the laws prohibiting the liquor traffic. Some doctors were introduced in evidence upon behalf of the appellant. They attended him while in jail, had examined his heart, and said that he complained of pains in the region of his heart; that he seemed somewhat nervous; that his trouble was obscure. The fire -which attracted the officers and "which -was observed by them at a distance of fifty yards was, according to the evidence, also observable from the point at which the appellant was found. The court made two orders extending the time within which to file the bills of exceptions. The second order definitely fixed the expiration date at December 24, 1923. The bills, as they apear in the record, were filed on December 26th. No reason is disclosed for not filing them at an earlier date. The State opposes their con *40 sideration, and following the statute and numerous precedents, they must be ignored. Nothaf v. State, 91 Texas Crim. Rep., 378, and authorities therein cited. While the evidence is circumstantial, it is regarded sufficient to support the verdict of the jury. Finding no error, the judgment is affirmed. Affirmed.