Page 159


59 S.W.2d 159


WARD
v.
STATE.


No. 15720.


Court of Criminal Appeals of Texas.
April 12, 1933.

        Appeal from District Court, Freestone County; H. F. Kirby, Judge.

        Ed Ward was convicted for possessing a still for the manufacture of intoxicating 
liquor, and he appeals.

        Reversed and cause remanded.

        Williford & Williford, of Fairfield, for appellant.

        Lloyd W. Davidson, State's Atty., of Austin, for the State.

        LATTIMORE, Judge.

        Conviction for possessing a still for the manufacture of intoxicating liquor; 
punishment, one year in the penitentiary.

        We have examined the various complaints made by appellant, and are of opinion 
that none of them show error except the one hereinafter discussed.

        Officers located a still, mash, etc., and stationed themselves to see if the parties 
operating same should appear. Appellant and others came to the place. Appellant was 
observed to take the tops off two barrels of mash, and, acting with another, to take the 
still off the furnace, and also to do something with a shovel near the furnace. One witness 
said appellant brought a sack of fruit jars to the place. Appellant took the stand and 
testified that he was on his way after a cow and calf that morning and fell in with Ritter 
who invited him to go by where the still was; that when he got there he simply stood 
around and looked at it; that he took two covers off two mash barrels at the request of the 
officers after they came up. He said he did not own the still, or have any control over it, 
or any interest in the other equipment.

        The charge was excepted to for its failure to instruct the law of circumstantial 
evidence. We think the exception well taken. Appellant was indicted for the possession of 
the still, barrels, mash, material, and equipment for the manufacture of intoxicating 
liquor. No one affirmed as a fact that appellant owned, controlled, or possessed the 
articles found by the officers. No statement of his to that effect was in testimony. The 
conclusion that they were in appellant's possession was but an inference from his 
presence at the scene, and the things the officers testified they saw him do. In section 
1873 of his Annotated P. C., Mr. Branch cites many authorities supporting the 
proposition that when the main fact to be proved is arrived at as an inference from 
various parts of the testimony, it is necessarily a case of circumstantial evidence. Hunt v. 
State, 7 Tex. App. 212: Harris v. State, 15 Tex. App. 638; Riley v. State, 20 Tex. App. 
105, and Early v. State, 50 Tex. Cr. R. 344, 97 S. W. 82, are cited by Mr. Branch. See, 
also, Hunter v. State, 120 Tex. Cr. R. 185, 47 S.W.(2d) 621.

        For the error mentioned the judgment will be reversed and the cause remanded.