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398 S.W.2d 759

Moore v. State

Court of Criminal Appeals of Texas

Decided December 8, 1965

Court of Criminal Appeals of Texas · decided 1965-12-08

Relies on Robinson v. State · 101 Tex. Crim. 7 - Gifford v. State · 100 Tex. Crim. 65 - Johns v. State

Decided 1965-12-08

WOODLEY, Judge.

¶1Appellant was found guilty of having in his possession “equipment and material designed for and capable of use for, and used in the manufacturing of illicit beverages containing alcohol in excess of one-half of one per cent by volume” in a dry area. His punishment was assessed by the jury at 6 months in jail and a fine of $500.

¶2Reversal is sought upon the contention that Art. 666-17a(l) Vernon’s Ann.P.C., under which the complaint and information were drawn, is unconstitutional in that it is too vague, general and indefinite and fails to advise the accused of the charges against him.

¶3Art. 666-17a(l) reads:

“(1) It shall be unlawful for any person to have in his possession any equipment or material designed for, capable *760of use f<fc, or used in the manufacturing of any illicit beverage.”

¶4Illicit Beverage is defined in Art. 666-3a(4) and includes any alcoholic beverage manufactured, stored, possessed … in violation of the Texas Liquor Control Act.

¶5Art. 666^4(b) provides that it shall be unlawful for any person in any dry area to manufacture, distill … any liquor, distilled spirits, whiskey ….

¶6These statutes were considered by this Court in Robinson v. State, 167 Tex.Cr.R. 40, 318 S.W.2d 62, wherein the information which failed to allege that the area was dry or that the beverage to be manufactured was illicit was held to charge no offense.

¶7Construed in connection with the other provisions of the act above set out, which define illicit beverage and make it unlawful to manufacture liquor in a dry area, we overrule the contention that Section 17a (1) of the Texas Liquor Control Act is not sufficiently definite and certain as to advise the accused of the charges against him.

¶8A similar statute was upheld in Johns v. State, 100 Tex.Cr.R. 65, 271 S.W. 926. See also Gifford v. State, 101 Tex.Cr.R. 7, 274 S.W. 149.

¶9The sufficiency of the evidence to sustain the jury’s verdict is challenged.

¶10It was stipulated that the area was dry.

¶11The state relied upon circumstantial evidence.

¶12W. M. Richardson, of the Texas Liquor Control Board, testified that he had known appellant for 2 or 3 years; that on December 11, 1964 he was checking a still that he had previously found and saw appellant there.

¶13There were four 50 gallon barrels full of mash and other barrels; a copper tank or cooker; a coiled copper tubing with connections that would fit the tank to the tubing; a butane bottle and three star burners which were lit.

¶14According to the witness Richardson, the appellant was there from about 1:30 to 4 o’clock P.M.; he was around this still equipment and he was moving, arranging and working with it.

¶15Appellant’s truck was there loaded with cedar trees (or Christmas trees).

¶16C. W. Strawn, Sheriff of adjoining Somervell County, testified that he was with Mr. Richardson. He described the equipment as nine barrels, four with mash in them, a butane bottle and three butane burners on it sitting between the four barrels. “There were two barrels on each side with a tarp over the top of them, and these bottles or burners were burning. Then there was a copper pot …

¶17“Q. Have you seen equipment such as you found there where Mr. Curly Moore was messing around with before?

¶18“A. Yes, Sir, I have.”

¶19He further testified that this particular still had all the equipment it needed to make or manufacture whiskey.

¶20Police Officer Tom Kirkpatrick also described the equipment and testified that it was capable of making whiskey or “white lightning.”

¶21The evidence is sufficient to sustain the jury’s finding that appellant had possession of the equipment or still used to manufacture illicit beverages.

¶22The judgment is affirmed.

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