Creed v. State , 71 Tex. Crim. 509 ( 1913 )

We concur in reversing and remanding this cause on account of two errors in the charge of the court. One is that Sheriff Burwell testified to finding forty-five pints of whisky under the floor of appellant's house; she testified that she had rented this room, under the floor of which the whisky was found, to one Geo. Jackson, and he was occupying the room, and she did not know this whisky was there. The court instructed the jury they could consider this testimony in determining whether or not she was engaged in pursuing the occupation or business. Appellant raised the issue she did not know the whisky was under the floor, and the charge of the court should have instructed the jury that if the whisky was owned by Jackson or any other person than appellant, and it was placed there without her knowledge or consent, it could not be considered against her for any purpose; that if they believed the whisky belonged to appellant and was placed there by her, or with her knowledge, then it could be considered in passing on the issue of whether or not she was engaged in the business.

Again in limiting the testimony as to sales alleged to have been made to Harbour Jones, the court instructed the jury if they believed that appellant acted as agent in procuring the whisky for Jones, she would not be guilty of making a sale to him, but permitted such testimony to be considered in passing on whether or not she was engaged in the occupation. Appellant requested a charge that if she acted as agent in procuring this whisky, same could not be considered as evidence that she was engaged in the business, and this should have been given.