281 S.W. 565 | Tex. Crim. App. | 1926
Lead Opinion
The offense is the unlawful possession of intoxicating liquor for the purpose of sale, punishment fixed at confinement in the penitentiary for one year.
The dwelling of the appellant was searched and there were found therein a number of little fruit jars. Some of these had the odor of whiskey and some contained a small quantity of whiskey, amounting in all to about half a pint. No other whiskey was found in the physical possession of the appellant. Some distance from his house, in the cornfield, which, according to the State's evidence, was in possession of the brother of the appellant, who lived about three-quarters of a mile distant, there were found four gallons of whiskey. In another locality there were some barrels of mash. On the appellant's premises there were found a sack of sugar and chops. There were tracks of children and men in the cornfield and near where the whiskey was found. The tracks apparently led towards the dwelling of the appellant. At the time of the search, no members of the appellant's family except himself were at home. The State's evidence showed that appellant had some children. Where they were is not disclosed, nor how long they had been away.
The possession of the small quantity of whiskey in the house of the appellant was not shown to be unlawful. It was not sufficient in quantity to come within the statute declaring the possession of more than a quart of whiskey to be prima facie evidence of an unlawful intent.
The circumstances touching the whiskey found in the cornfield are not deemed of such cogency as to show, beyond a reasonable doubt, that it was in the possession of the appellant. See Sterrett v. State, 98 Tex.Crim. Rep..
For the reasons stated the judgment is reversed and the cause remanded.
Reversed and remanded.
Addendum
The State, through Hon. Jewell L. Baldwin, County Attorney of Johnson County, has filed a motion for rehearing insisting that we were in error in reversing the judgment upon the ground that the evidence was *401
insufficient to support the conviction, and cites in support of his contention Miller v. State,
Complaint is made of reference in argument to the failure of appellant to testify. This was not discussed in our original opinion. This complaint must be sustained and calls for overruling the State's motion for rehearing, without further reference to the evidence. The matter complained of arose in this-wise. While one of the State's witnesses was testifying it was elicited on cross-examination that he did not know that appellant's brother was cultivating the land upon which the four and a half gallons of whiskey had been found, but had appellant's word for it that he had rented this land and then sub-rented it to his brother. At this point in the cross-examination State's Attorney objected that such testimony was hearsay and said, "This defendant is here, if he wants to testify to the fact that his premises were sub-rented," at which point he seems to have been interrupted by exception taken by counsel for appellant, one ground of which was that the statement made by the State's Attorney in the presence of the jury was a comment on appellant's right to testify. By another bill it is shown that appellant did not testify but that during the argument of State's Attorney he said "that the defendant introduced no evidence that the whiskey was not possessed for sale and did not rebut by any evidence the testimony of the State." The bill recites that no other parties were present at the time the raid was made save the officers and appellant. The officers testified for the State. It is contended that it is affirmatively shown by the evidence that appellant was the only one who could contradict the testimony offered by the State and the only person who could testify that the whiskey was not possessed for sale, and was therefore an allusion to his failure to testify. If we understand the record, counsel for the State in his argument had assumed that the whiskey found in the cornfield had been shown to be in the possession of appellant and therefore under the statute (Art. 671, P. C., 1925) was prima facie evidence that he possessed it for the purpose of sale. In view of the statements first made, in effect, that appellant "was present and could testify" we are at a loss to understand how the jury could have appropriated the subsequent argument that appellant had introduced no evidence to show that "it was not possessed for sale" other than as referring to the failure of appellant to testify in regard to the matter. It appears to bring the case clearly within the rule announced in Boone v. State,
We think the argument was in contravention of the statute (Art. 710, Revision 1925) prohibiting allusion or comment by counsel to the failure of a defendant to testify and called for a reversal.
The State's motion for rehearing will be overruled.
Overruled.