Page 821

258 S.W. 821

MYERS
v.
STATE.

(No. 8118.)


Court of Criminal Appeals of Texas.
February 20, 1924.

Appeal from District Court, Freestone County; A. M. Blackmon, Judge.

Jim Myers was convicted of manufacturing intoxicating liquor, and he appeals. Reversed and remanded.

R. L. Williford, of Fairfield, A. B. Geppert, of Teague, and R. M. Edwards, of Fairfield, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

MORROW, P. J.

The offense is the unlawful manufacture of intoxicating liquor; punishment fixed at confinement in the 
penitentiary for a period of two years.

Officers, who testified as witnesses, found two stills and a quantity of whisky in a thick woods near a 
spring or branch. Appellant and several other persons were present. The appellant, a farmer about 40 years 
of age, had lived in the vicinity for a number of years. According to his testimony, he had accompanied one 
Cornwell to the stills at his request to recover some nets and fish which Cornwell claimed to have lost. One 
of the party carried to the stills appellant's shotgun and some shells. On approaching the stills some men 
ran away. It was appellant's theory that three men committed the offense, and that the presence of appellant 
and his companions, including Cornwell, was for the innocent purpose of looking for Cornwell's property. 
Evidence was introduced to the effect that three men, each in a boat, had been seen about the locality of 
the stills, and their movements in the vicinity were described by witnesses. One of those present at the 
stills was Frazier, who was also indicted. Frazier continued his case and to have granted appellant's motion
for a severance to secure the testimony would have necessitated a continuance of appellant's case. The 
statute expressly declares that under such conditions the severance shall not be granted. Art. 727, C. C.
P.

Mrs. Frazier, according to an application for a continuance, would have testified that Cornwell had told her
he was going to get appellant to go with him to the stills to get his nets and fish. The hearsay rule 
apparently would have rendered this testimony inadmissible. Appellant and several other witnesses testified
that appellant went to the stills at Cornwell's request to hunt his nets and fish. When the officers 
approached, the stills were in full operation, all necessary equipment for making whisky was at hand, and 
some 15 gallons of whisky were there, all these things apparently being in possession of the appellant, 
Cornwell, and others. Considering the defensive theory and testimony, the proof of Cornwell's attempted
flight when the officers suddenly appeared and commanded the parties to hold up their hands was not
improperly received. According to appellant's testimony and theory, he and Cornwell were acting together,
and Cornwell's act upon the discovery of the parties by the officers was so connected with the transaction 
as to render it admissible against the appellant.

Appellant's testimony in his own behalf


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is, in substance, this: That the locality of the stills was known to him. That three strangers had been seen
upon the river and near the locality of the stills. That they were using boats, which were covered with 
tarpaulin, going in the direction of the stills. That they had been seen with something in sacks. That when
appellant and the others approached the stills the persons ran off. Neither the number or the identity of 
the persons was known to the appellant. About 30 minutes later the officers appeared, drew their pistols, 
ordered the appellant and others to hold up their hands, and put them under arrest. On cross-examination, 
appellant was asked by the state why he did not tell the officers about the three men. The state also 
elicited from the officer who made the arrest that appellant, at the time, had not mentioned the three men
or any men running away from the stills.

Objection was made to each of these matters upon the ground that they were violative of the statute on 
confessions. That statute has been construed as inhibiting proof against the accused on trial of his silence 
at the time of his arrest. Stanton v. State, 94 Tex. Cr. R. 367, 252 S. W. 519; Branch's Ann. Tex. P. C.
§ 59; Weaver v. State, 43 Tex. Cr. R. 346, 65 S. W. 534; Thompson v. State (Tex. Cr. App.) 78 S. W. 691. 
Silence of one when accused of crime is a circumstance against him (Underhill on Crim. Ev. § 208); but while
under arrest he is not called upon to speak, and proof of his failure to do so should be rejected (article
810, C. C. P.; also Fulcher v. State, 28 Tex. App. 465, 13 S. W. 750; Frazier v. State, 52 Tex. Cr. R. 131,
105 S. W. 508; Nolen v. State, 14 Tex. App. 474, 46 Am. Rep. 247).

The circumstances were such as raised the issue of principals. There was no error in instructing the jury 
upon the law of principal offenders.

Because of the error pointed out, the judgment is reversed, and the cause remanded.