James v. State , 159 Tex. Crim. 374 ( 1953 )

WOODLEY, Judge.

The conviction is for possession of beer, wine, gin and whisky, the jury having assessed the punishment at 75 days in jail and a fine of $300.

The sole question presented is the sufficiency of the evidence.

Carl Rains, Sheriff of Garza County, admittedly a dry area, searched the place of business of appellant located in the city of Post, and found a large assortment of beer, wine, gin and whisky under some old beer cases in what is described as an outhouse.

In the house proper, which is described as “a little composition, two-room house facing East,” eleven cans of beer were found in the ice box.

Appellant’s contention is that it is not shown that appellant was in control of the outhouse or in possesison of the beer, wine and whisky found there, and that the amount of beer found in the two-room house was not an amount sufficient to raise a presumption that it was possessed for the purpose of sale.

In addition to referring to the premises searched as appellant’s place of business, the sheriff testified that she had resided there ever since he had been in office, and so far as he knew, no one else lived there.

As to the outhouse where the large amount of beer and liquor was found, the sheriff testified that it was a little house ten or twelve feet southwest of the two-room house; on the same property; on the same lot; at the southwest corner of the house and toward the back of the lot.

Asked as to whose property the little outhouse was on, the sheriff replied “It is on the same property. I believe it is owned by, the property is owned by, has been sold by Bessie James (appellant). It is owned by Smith, I believe. The owner of the property has rented it.”

Whether this testimony referred to a sale by appellant prior or subsequent to the search is not clear. But we find nothing therein which suggests a different ownership or control over the outhouse from that of the other property.

Appellant did not testify, and we are not authorized to consider as evidence her remarks found in the record.

We conclude that the evidence is sufficient to sustain the conviction.

The judgment is affirmed.