234 S.W. 1107 | Tex. Crim. App. | 1921
Conviction is for the unlawful possession of intoxicating liquors; punishment fixed at confinement in the penitentiary for a period of one year.
In Woolen’s Case, 68 Tex. Cr. R. 189, 150 S. W. 1165, the court held under the facts there developed that there had been such disregard of the statutory provisions relating to the organization of the grand jury as to vitiate the impaneling of the grand jury that found the indictment against Woolen. In that case, instead of naming the jury commissioners to select the grand jury at The succeeding term, the district judge, at the November term, 1911, caused the jury commissioners to select grand jurors for the January, March, and May terms, 1912. The indictment against Woolen was found by the grand jury organized under this order at the March term, and on appeal it was held that the motion to quash should have been sustained. The essential distinction between the facts then before the court and those now under consideration is that the grand jury, at the March tem, was noL selected by commissioners, appointed at the preceding term, but was selected by commissioners appointed long in advance of the meeting of that term. The importance of the selection of the grand jury by commissioners ajjpointed in accord with the law, in our opinion, far transcends the importance of summoning them at a particular time. In the one case the substance of the law is that the commissioners shall be duly selected at the preceding term, while in the other it is that the list shall be preserved and cared for in accord with the stat
The evidence of guilt, which is wholly circumstantial, does not, in our opinion, fulfill the requirements of the law. It is. contemplated by the statute that to authorize a conviction. there should be proof that the accused had actual personal care, control, and management of the intoxicating liquor. In the instant case, two quarts of liquor were found in a buggy belonging to appellant, but whether appellant had driven the buggy, and whether he or some other person had put the whisky in the buggy, are essential matters not disclosed by the evidence. No presumption or inference adverse to the appellant could arise from the absence of evidence which apparently was available to the state, if appellant at the time was in control of the buggy or had driven it to town, no reason is given why the fact could not have been proved by the state. In the state of the evidence as we find it, the hypothesis that some other person had control of the buggy or was responsible for the presence of the liquor is not sufficiently overcome. We, therefore, believe the verdict unwarranted. Particularly is this # true in view of the amendment to the statute upon which the) conviction is founded. Formerly, the possession of intoxicating liquors, except for medicinal, mechanical, scientific, or sacramental purposes, was unlawful, and the burden was upon the accused to establish that his possession was lawful. Roberts v. State (No. 5970) 234 S. W. 89, not yet [officially] reported. -Under the amendment (chapter 61, Acts 37th Leg., 1st Called Session], the possession becomes unlawful only when for the purpose of sale, and the burden is upon the state to allege and prove that the possession was for such purpose. We find in the record no evidence that would lead to a satisfactory conclusion that the appellant possessed the liquor for the purpose of sale.
For the reasons stated, the judgment is reversed, and the cause remanded.
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