The opinion
THURMAN, C. J.
I dissent from the opinion of the majority, not because the evidence was insufficient to sustain the verdict, but because evidence was admitted, over defendant’s objection, which, in my opinion, was irrelevant and inadmissible. I object to that portion of the evidence, not only because it was irrevelant for reasons I will state, but because it tended to prove another offense than that charged in the information, and thereby tended to prejudice the defendant and prevent him having a fair trial. The rule against admitting such evidence should be rigidly enforced by the courts in order to give a defendant in a criminal case a fair and impartial trial, as contemplated by the Constitution and laws of the state.
The operation of a still and the manufacture of intoxicating liquor is a distinct offense from that of having such liquor in one’s possession. The offense charged against the defendant is his having in his possession a 10-gallon keg partially filled with moonshine whisky. No suggestion is made as to the operation of a still and the manufacture of whisky or other intoxicating liquor. The defendant pleaded not guilty as to the offense charged, and went to trial. While it would be going too far to admit that the evidence was conclusive against him, I will admit it was sufficient to justify the jury in finding him guilty. The majority opinion fairly reflects the evidence in that respect. Some one was seen by the officers going from the house in the direction of the trees and returning. The officers investigated and found fresh tracks, apparently made that morning, leading from the house to the trees and returning to the house, and upon inquiry of the defendant learned that no one but he and his wife had been there for several days. Among the trees to which the tracks led, the officers found a 10-gallon keg partially filled with moonshine whisky and also found a
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small quantity of whisky in a glass in his home, and other inculpatory evidence. This evidence alone without a satisfactory explanation was sufficient to justify the verdict of the jury. But, after such evidence was admitted, the state, over defendant’s objection, was permitted to introduce evidence to show that a still was found about a half mile away from the premises of defendant, and that too, as I contend, without any sufficient connection to show that the evidence was relevant or material to the offense charged in the information. It tended to show another and distinct offense, as above stated, one not shown to be connected with the offense charged. In such case the separate and distinct offense should have been established by the evidence beyond a reasonable doubt. In Underhill on Evidence, p. 160, it is said:
“The connection must appear from the evidence. "Whether any connection exists is a judicial question. If the court does not clearly perceive it, the accused should be given the benefit of the doubt and the evidence rejected. The minds of the jurors must not be poisoned and prejudiced against the prisoner by receiving evidence of this description unless the case clearly comes under this exception.”
A fortiori, such evidence ought not to be admitted where it is entirely circumstantial, for in that case all the rules of circumstantial evidence intended to safeguard a defendant charged with crime should be enforced by the court.
Let us now briefly review the facts material to the question here involved. It appears that the defendant’s home, which he had rented from some landlord, was situated about 3 miles from the highway, and the road from the highway appeared to have been extensively traveled by automobiles. There was a drag road, for dragging "Wood, leading from, defendant’s house up to a point a few hundred yards from the still. From this drag road the tracks of a horse were followed for a distance of about 200 yards, and from that point a man’s tracks led to the still. The front feet of the horse were shod with No. 1 shoes. These were compared
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with tracks, made by defendant’s horse, and were said to resemble them. It must be true that many horses wear No. 1 shoes. For some reason the tracks of the hind feet of the horse, which were unshod and would have shown the natural shape of the- hoof, were not compared. The man’s tracks were neither measured nor compared, notwithstanding the fact that fresh tracks supposed to have been made by defendant that very morning were found on and about defendant’s premises. While it is stated that all the tracks leading from the still- were down towards the house, such tracks were neither measured nor compared with the tracks leading from the house to the keg. As before stated, the evidence shows that from the main highway up to defendant’s residence the road was extensively traveled by automobiles. Whether the tracks between the house and the still were made by these people who came up- in automobiles, or by the defendant, or some one else, does not appear. The probabilities in that regard appear to be about equal. But there is another feature of the evidence which tends to render it improbable that the moonshine whisky found in the keg came from, the still. The state’s witnesses testified that defendant’s car was about 40 yards from the house and about 20 yards from the keg. There were tracks leading back and forth from the car to the keg. These tracks certainly did not indicate that defendant had brought the keg of whisky from the' still in his car, because there were no tracks of an automobile in that direction from the house. It does not even appear that an automobile could have been driven above the house. If it were contended here that the keg was brought from some point on the highway up to defendant’s house, there would be circumstances
from
which such fact might at least be remotely inferred; but, to undertake to- connect the keg of moonshine whisky with the still, it is necessary to fly in the face of all the proven circumstances. If we consider the circumstances testified to by the state’s witnesses, it is far more probable that, if the defendant is guilty as charged in the information,
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he brought the keg from some place on or near the highway in his car, drove the car up to where the witnesses found it, and carried the keg from the car to where it was found, as indicated by the tracks. The circumstances relied on are entirely consistent with this theory of the case and inconsistent with the theory that defendant manufactured the moonshine found in the keg. If the circumstance's, measured by the rules of circumstantial evidence, are not sufficient to justify an inference that defendant manufactured the liquor found in the keg, then there is no legal connection whatever between the still and the crime charged in the information. Both defendant and his wife denied any ownership or knowledge of the still. They testified that defendant was only in possession of the residence and the corral. Their’ landlord testified that these were all he rented to the defendant. In fact it does not even appear that his landlord owned the premises where- the still was found, which was a half mile from defendant’s house. T-'o overcome this direct and positive testimony, the -circumstances relied on to prove defendant’s! connection with the still ought to be well-nigh conclusive. It is purely a case of circumstantial evidence, and, unless the circumstances all point to the defendant’s guilt and are inconsistent with his innocence, the evidence ought not to have been admitted. The fact that a part of a pair of overalls found at the still is said to have matched another part found on the doghouse is of little or no significance. Both defendant and his wife, who had occupied the premises for only a few months, testified that the half pair of overalls were on the doghouse when they rented the premises. Such testimony was in no manner rebutted, and was not an unreasonable explanation.
The majority opinion cites, the following cases in support of the holding that the evidence relating to the still was relevant:
Thompson
v.
State,
99 Tex. Cr. R. 470 , 269 S. W. 1048 ;
Kendall
v.
Com.,
202 Ky. 169 , 259 S. W. 71 ;
Dameron
v.
State,
97 Tex. Cr. R. 172 , 260 S. W. 855 ;
Kelly
v.
State,
95 Tex. Cr. R. 138 , 252 S. W. 1066 ;
State
v.
Work,
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47 S. D. 649, 201 N. W. 558 ;
State
v.
Simons,
178 N. C. 679 , 100 S. E. 289 ;
Com.
v.
Abel,
84 Pa. Super.
Ct.
102 ;
People
v.
Petrovich,
67 Cal. App. 405 , 227 P. 978 ;
People
v.
Malone,
68 Cal. App. 615 , 229 P. 1000 ;
Keith
v.
U. S.
(C. C. A.) 11 F. (2d) 933. The cases are not reviewed or commented upon, nor is it necessary that I should do so. It is sufficient to say there is a vital distinction between every one of the cases relied on and' the case at bar, in that in every one of these cases the evidence in question related to inculpatory things found on the premises of the defendant or things he was conclusively shown to have been connected with. The very things that were necessary to make the evidence relevant were shown to exist in the cases cited.
In what has been said, I have confined my remarks almost entirely to the proposition that the evidence objected to was irrelevant and therefore inadmissible. It is important, however, to consider the further fact that the evidence here in question tended to prove a crime other than that charged in the information. As to such evidence Underhill, Criminal Evidence (3d Ed.) § 150, says:
“Generally it is error to admit evidence independent of the crime charged of other offenses * * * such as in a charge of * * * violating liquor laws,” etc.
The author then states many exceptions to the general rule which arise from the necessity of the case, such as where several crimes are so intermixed and blended that proof of one cannot be given without showing the other; where proof of the other crime is offered for the purpose of showing guilty knowledge; where as here claimed the evidence is relevant to the crime charged, etc. Chapter 15 of the work referred to is devoted exclusively to this subject, and discusses at length, the exceptions to the general rule.
I ¡am clearly convinced after a reasonably careful examination that the evidence here in question was not admissible under any of the exceptions enumerated'.
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For the reasons stated, I am of opinion the evidence objected to was inadmissible, and that the court erred in overruling defendant’s objection thereto.