[2] There has been a departure from the former strict construction of verdicts, and the rule now obtaining is that they should receive a liberal rather than a strict construction, and if the finding of the jury can be reasonably ascertained, the verdict should be held good as to form. This is exemplified in Curry v. State, 7 Tex. App. 91; Birdwell v. State (Tex. App.) 20 S. W. 556; Craig v. State, 62 Tex. Cr. R. 299, 137 S. W. 667, and in many other cases collated under section 646, Branch's Ann. Tex. P. C., but we have been cited to no authority, and are aware of none, which authorizes this court to hold sufficient a verdict from which there is omitted one of the elements required to be therein by a positive statute, and none which would authorize the trial court to enter a judgment the effect of which is to supply the verdict with a finding omitted therefrom. The authorities are to the contrary. Doran v. State, 7 Tex. App. 386; O'Connor v. State, 37 Tex. Cr. R. 267, 39 S. W. 368; Murray v. State, 1 Tex. App. 430; Shaw v. State, 2 Tex. App. 487; Shackelford v. State, 102 Tex. Cr. R. 92, 277 S. W. 695.

The judgment of guilt entered upon the verdict cannot be sustained. The verdict should not have been received, but the jury should have been sent back for the return of a proper verdict.

No bills of exception appear in the record complaining of any matter of procedure. The only question left for us is the sufficiency of the testimony. We have carefully examined same and deem it amply sufficient. No error appearing, the judgment will be affirmed.

On Motion for Rehearing.

MORROW, P. J. In a remote place, surrounded by a palmetto thicket, the officers found a still in operation containing about 20 gallons of whisky in the making. The liquid was pouring into the dripping jar. It was a 75-gallon copper still with a 100-gallon cooling barrel. There was a well with a force pump attached to it. There were twenty-three 50-gallon barrels of wheat mash, and 20 gallons of whisky in the barrel. At the time the officers raided the place, the appellant, Whatley, and a man by the name of Havens were seen coming from the direction of the still and about 150 yards from it. They were walking on a log which was over a drain and a part of a path leading to the still. There was no one else in the locality. The parties were placed under arrest. W. E. Quinn and his son, C. R. Quinn, who lived in the vicinity, accompanied the officers at the time of the raid. Both of the Quinns testified that they had seen the still on two or three previous occasions, upon one of which occasions they saw the appellant and Havens there; that one of them was pumping water and the other was shoving some mash or handling a barrel. The still at the time had no fire under it. There were no others there. After the raid the still was taken possession of by the officers, and at their request it was taken in a wagon to the Quinn home. According to the state's testimony, the coil dropped from the wagon, and when the younger Quinn went back to pick it up he met the appellant, who asked why they had taken his sugar and prunes, and also why they had turned in the still to the officers. Appellant drew a pistol upon the In prosecution for manufacturing intoxicat-witness, when the elder Quinn appeared with ing liquor, conviction held supported by evi- a gun and ordered the appellant to drop his pistol, which he did.

Appellant's motion for rehearing is granted, the judgment of affirmance is set aside, and the judgment of the trial court is now reversed and the cause remanded.

WHATLEY v. STATE. (No. 10412.) (Court of Criminal Appeals of Texas. Nov. 24, 1926. On Motion for Rehearing Jan. 5, 1927.)

On Motion for Rehearing.

Intoxicating liquors 236 (19)-Conviction of manufacturing intoxicating liquor held supported by evidence.

dence.

Appeal from Criminal District Court, Har- hibited upon the trial. ris County; C. W. Robinson, Judge.

The pistol was ex

The appellant, Whatley, did not testify, but Havens, who was tried at the same time, did so. He explained their presence in the locality with the statement that they were cutting posts, and that their presence at the Geo. E. Gordon, of Houston, for appel- still at the time the Quinns saw them was

Henry Whatley was convicted of manufacturing intoxicating liquor, and he appeals. Affirmed.

lant.

Sam D. Stinson, State's Atty., of Austin, and Robt. M. Lyles, Asst. State's Atty., of Groesbeck, for the State.

LATTIMORE, J. Conviction in criminal district court of Harris county of manufacturing intoxicating liquor; punishment, one year in the penitentiary.

merely for the purpose of getting a drink of water. Appellant and Havens offered some testimony with reference to their good reputation, also, some testimony that they had sold some posts.

We are not prepared to say that the circumstances were not such as to justify the verdict rendered.

The motion is overruled.

(289 S.W.)

Ex parte BICE. (No. 10667.)* (Court of Criminal Appeals of Texas. Dec. 8, 1926.)

1. Habeas corpus 33-One accused of felony, who thinks bail excessive, should resort to habeas corpus (Code Cr. Proc. 1925, art. 136).

One accused of felony, who thinks bail excessive, should resort to writ of habeas corpus, rather than appeal, and, if on hearing of writ his relief be denied, he may then appeal to Court of Criminal Appeals, in view of Code Cr. Proc. 1925, art. 136.

2. Bail 49-In fixing bail, proof should be taken as to nature and circumstances of offense, and accused's ability to make bond

(Code Cr. Proc. 1925, art. 281).

In fixing bail, proof should be taken as to nature of offense, circumstances under which it was committed, and ability of accused to make bond, in view of Code Cr. Proc. 1925, art. 281. 3. Bail 52-$15,000 bail held not excessive for one accused of murder.

$15,000 bail held not excessive for one accused of murder, where facts surrounding homicide made strong case against him.

Wheld that a direct appeal can be taken from an order of any court, made without the intervention of a writ of habeas corpus, fixing bail in a felony case. The rule seems to be that one who thinks his bail excessive should resort to his writ of habeas corpus sought upon proper averment, and, if upon hearing thereof his relief be denied, he may then appeal to this court. Article 136, 1925 C. C. P.; Ex parte Meador, 93 Tex. Cr. R. 450, 248 S. W. 348; Hernandez v. State, 4 Tex. App. 425.

However, an original application for a writ of habeas corpus has been filed in this court on behalf of this relator, alleging that the bail fixed was excessive, and an agreement has been reached between relator and the state to the effect that the statement of facts Brazoria county, upon the hearing of the heard by the honorable district court of affidavit alleging insufficient bail, which is on file in this court at this time, may be held and considered as if filed with said application for the writ of habeas corpus, and same will be by us so considered in connection with said application.

The facts surrounding the homicide, as shown by the state witnesses, make a strong

4. Bail 52-Fixing bail at $15,000 in murder case against relator as such as might, in the case held not abuse of discretion.

Fixing bail at $15,000 for one accused of murder held not abuse of discretion, though justice of peace had fixed amount at $1,200, in view of evidence as to accused's ability to make such bond.

Henry Bice was accused of murder, and,

first instance, have justified the fixing of the bail at the amount, named by the district court. The record reflects no effort on the part of relator to make the bail fixed, and seems also devoid of testimony as to the financial condition of relator.

[2-4] Article 281, 1925 C. C. P., lays down rules to govern the fixing of the amount of bail. Among other things, the nature of the offense and the circumstances under which it was committed, as well as the ability of the accused to make bond, are to be consid

from an order of the district court raising the amount of his bail, he appeals. He also attacks the bail as excessive by an original application for a writ of habeas corpus. Relief denied, and relator remanded to the cus-ered, and proof should be made on these tody of the sheriff.

Scott Gaines and A. E. Masterson, both of Angleton, for relator.

Sam D. Stinson, State's Atty, of Austin, and Robt. M. Lyles, Asst. State's Atty., of Groesbeck, for the State.

points. In addition to the testimony showing the nature and character of the offense herein, two witnesses gave testimony relative to relator's ability to make the bail required. Both said witnesses were sureties on the $1,200 bond of relator. Dr. Hamphill swore that, in his opinion, relator could make a LATTIMORE, J. Relator was arrested bond of from $3,000 to $5,000 and no more; upon a complaint charging him with murder, that he would not sign the bond of relator and was granted bail by a justice of the peace if it was fixed at $10,000, but would if it was in the sum of $1,200. There is nothing in fixed at $5,000. Mr. Ducroz said he did not the record by which we can determine wheth- think relator could make bond for over $5,er evidence was heard by the justice. Sub-00u. Re-examined, Ducroz said that Dr. sequently an affidavit was made before the Hamphill had a thousand-acre farm, beside district judge having jurisdiction, said affi-a lot of other property; that witness had davit being made under authority of article 260, 1925 C. C. P., which set up that the bail fixed by the justice of the peace was insufficient in amount, and on the hearing by said district court the bail of relator was raised and fixed at $15,000. Appeal was taken to this court from said order, the legality of which appeal is now attacked.

3,000 acres of land, 450 head of cattle, and other property. No showing was made as to the other two men who were sureties on the original bond, nor as to other friends or resources to whom or to which relator might look, as enabling him to make the bond fixed by the court.

Substantially a similar case appears in Ex [1] As far as we know, it has never been parte McDaniel, 96 Tex. Cr. R. 539, 258 S.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
*For opinion on motion for rehearing, see 289 S. W. 1120.

to sufficiently present affirmative defense of being at place where he was arrested as visitor and without knowledge of still.

W. 1057, the opinion in which cites cases | 5. Intoxicating liquors 239(4)-Charge held where the reduction of bail was sought without a showing made of an effort to make the bail required. We see no reason to vary from the conclusion reached by us in said

cases.

We are not of opinion that the bail fixed is excessive, viewed only in the light of the case against relator made by the state, nor are we led to believe that, on the showing made as to his ability to make said bond, there was any abuse of the discretion of the district judge in fixing it at said amount. If upon a reasonable showing of his inability to make the bond required, based upon other reasons than the mere conclusions in advance of some of his friends that he could not make same, it would appear to us that relator would be in a better attitude to ask for a reduction of bail.

The relief sought will be denied, and relator will be remanded to the custody of the sheriff.

WILKES v. STATE. (No. 10007.)

Charge, in prosecution for manufacturing intoxicating liquor, presenting defendant's afvisitor at place where he was arrested and firmative defense, to effect that he was only had no knowledge of still, held to sufficiently present such defense.

6. Witnesses 337(5)—Defendant held properly questioned relative to conviction and charge of other felonies as affecting credibility.

Defendant, in prosecution for manufacturing relative to his conviction and being charged intoxicating liquor, held properly questioned with other felonies for purpose of proving his credibility as witness.

Appeal from District Court, Hopkins Coun. ty; J. M. Melson, Judge.

John Wesley Wilkes was convicted of pos sessing mash and equipment for manufacturing intoxicating liquor, and he appeals. Affirmed.

Ramey & Davidson, of Sulphur Springs, for appellant.

Sam D. Stinson, State's Atty., of Austin,

(Court of Criminal Appeals of Texas. Dec. 15, and Robt. M. Lyles, Asst. State's Atty., of

1926.)

1. Criminal law 394-Officers' testimony of manufacture of liquor will not be suppressed because obtained without search warrant.

Refusal of motion to suppress testimony of officers as to illegal manufacture of liquor on ground that it was obtained without search warrant held not erroneous.

2. Criminal law 394—Evidence of officers of illegal manufacture of liquor, obtained after observing defendant engaged therein, held not obtained by illegal search.

Groesbeck, for the State.

LATTIMORE, J. Conviction in district court of Hopkins county of possessing mash and equipment for the manufacture of intoxicating liquor; punishment, two years

and six months in the penitentiary.

Officers were on their way at night for the purpose of conducting an investigation of appellant's premises. As they were passing the home of one Lewis several hundred yards from that of appellant, they observed a light in the smokehouse of Lewis. The walls of the house had large cracks in them. ApEvidence of illegal manufacture of liquor,proaching the smokehouse and looking obtained by officers after observing defendant through the cracks the officers observed apand another apparently engaged in manufac-pellant and a negro engaged apparently in ture thereof, held not obtained by illegal search. fitting a pipe into a barrel. There was a

3. Criminal law 595 (4)-Testimony that defendant had not been where he was discovered manufacturing liquor very long held not sufficiently material to warrant continuance.

Testimony that defendant had not been at home of person where he was arrested while engaged in manufacturing liquor for great length of time before discovery held not of such sufficient materiality as to warrant continuance.

still in the smokehouse, and a furnace full of mash was over a fire, which was burning. The officers arrested appellant and the negro, and his trial and conviction followed.

[1, 2] Passing upon the complaints in the order in which they appear in appellant's brief, we observe that it was not error for the court to refuse appellant's motion to suppress the testimony of the officers upon the ground that the same was obtained without

4. Intoxicating liquors 239(1)—Charge on a search warrant. This court has uniformly meaning of "possession" held sufficient.

declined to grant such motions even in cases Charge, in prosecution for manufacture of which might be deemed appropriate under intoxicating liquor, defining "possession" as some federal practice. As applied to the inhaving had actual care, control, and manage-stant case, we would further say that the ment of property, held sufficient. facts would not seem, even under the federal [Ed. Note. For other definitions, see Words practice, to call for the granting of the moand Phrases, First and Second Series, Posses- tion. The evidence was not obtained by any sion.] illegal search.

(289 S. W.)

mony of statements of unwarned defendant to deputy sheriff, immediately preceding arrest, held reversible error.

[3] Appellant made a motion for continu- | 2: Criminal law 518(1)—Admitting testiance because of the absence of one Gowen by whom he expected to show that he had not been at the home of Lewis a very great length of time when the officers discovered him. We are unable to agree that the testimony of Gowen was of that degree of materiality which would render reversible error the action of the court in overruling the motion.

[4] There was a special charge asked instructing the jury as to the meaning of the term "possession." In the charge the court defined the word "possession" as meaning that the person alleged to have been in possession must have had actual care, control, and management of the property at the time. This was sufficient.

We find no error in the charge of the court in submitting the definition of principles and making it applicable to the facts in this case. [5] Appellant complains of the fact that the charge did not affirmatively present his defense. As we comprehend the record, the affirmative defense, if any, was that appellant had gone down to Lewis' place and into the smokehouse and was there without prior knowledge of the fact that there was any still there, and that he remained only a very short time and took no part in the operation of the still. The court told the jury that if they believed from the evidence that appel

lant did not know the intent of Lewis or the

negro, or either of them, in the possession of the still, mash, material, equipment, etc., and did not aid by acts the said parties, or if they had a reasonable doubt of these facts, they should acquit the appellant. We think this sufficiently presented his affirmative defense.

[6] Appellant was asked in regard to his conviction and being charged with other felonies. This was admitted for the purpose of affecting his credibility as a witness. The court so told the jury in the charge. We are unable to agree with appellant in his complaint in this matter. We are of opinion that the testimony sufficiently supported the finding of the jury.

Admitting testimony of statements, made by unwarned defendant to deputy sheriff immediately preceding arrest, held to constitute reversible error.

3. Criminal law 516-Statement of defendant, charged with cattle theft, in alleged written confession, of refusal to say what he did with hide, held inadmissible.

In prosecution for cattle theft, part of alleged written confession of defendant, wherein he stated that he did not care to say what he did with hide, held inadmissible as not being a voluntary confession.

Appeal from District Court, Haskell County; Bruce W. Bryant, Judge. Spencer Dozier was convicted of cattle Reversed and retheft, and he appeals. manded.

Brooks, Smith & Robinson, of Anson, for appellant.

Sam D. Stinson, State's Atty., of Austin, and Robt. M. Lyles, Asst. State's Atty., of Groesbeck, for the State.

LATTIMORE, J. Conviction in district court of Haskell county of theft of cattle; punishment, two years in the penitentiary.

Mr. Singleton placed a heifer in a pasture belonging to appellant's mother, to breed her to a male therein. Appellant killed her that night and peddled out the beef the next morning. He claimed that he thought she was a heifer belonging to his mother, and that his mother had consented for him to kill an animal belonging to herself and peddle it out for beef. The pasture contained something over 500 acres.

There are a number of bills of exception reserved to argument of the district attorney, but, in view of our disposition of the case and the likelihood that such argument will not appear upon another trial, we do not discuss same.

[1] We are not in accord with appellant's

Finding no error in the record, the judg- complaint at the admission of the testimony ment will be affirmed.

DOZIER v. STATE. (No. 10490.)

of the finding of the head, entrails, feet, etc., of the animal in the pasture referred to, the objection being that the parties finding said head, etc., had no search warrant. The pasture belonged to appellant's mother and was

(Court of Criminal Appeals of Texas. Dec. 15, under her control.

1926.)

1. Searches and seizures 7-Defendant cannot complain of admission of testimony obtained by search of mother's pasture without

warrant.

Defendant, in prosecution for cattle theft. cannot complain of testimony of finding of head and entrails of animal in pasture belonging to his mother, because search was made without a

warrant.

[2] By his bill of exceptions No. 5, appellant complains that Deputy Sheriff Richards was permitted to testify that, after finding the buried head of the alleged stolen animal, the entrails, etc., in the pasture of appellant's mother, and knowing that appellant had peddled out beef the day before, he suspected appellant and drove down to his mother's home, saw appellant in the cotton patch and motioned to him to come out there; when

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Could it be contended that such denials could be introduced against him under the guise of being a confession? We think not. "I says, 'Buster, what did you do with the If appellant refused to tell where the head hide?' He says, 'I sold it.' I says, 'Where- was, or the feet were, or what he did with abouts?' He says, 'At Knox City or Rochester,' the hide, etc., these refusals were not adand I says, 'Aw, now, you didn't.' I says, missible if he was under arrest, and that they 'What did you do with the head?' He said, 'It's were written down and signed by appellant over there.' I says, 'What did you boys want does not make them admissible as confesto bury that head for?' He says, 'I don't know.' sions, in our opinion. To hold otherwise I says, 'Buster, I expect you boys got your- would be to abrogate the rule that silence or selves in trouble over that.' I says, 'Did you know that was Mr. Singleton's yearling?" He refusal to talk, or the oral or written denials says, 'I don't know.' I says, 'I expect you bet-of one accused of crime, when under arrest, ter come and go with me to Haskell.' Then is when I arrested him right there, and he got his cap and we went on down and got Mr. Newgrove, and after I got them in the car I warned them; I says, 'You boys-.'"

This expression was not, in any sense, a voluntary confession, but the contrary. Suppose, after the state's attorney had warned appellant, the latter had then said, in writ-second in 100 Tex. Cr. R. 83, 271 S. W. 897. ing, or orally: