Davis v. State , 101 Tex. Crim. 667 ( 1925 )

Possession of intoxicating liquor is the offense; punishment fixed at confinement in the penitentiary for a period of one year.

A proper recognizance having been filed, the dismissal is set aside and the case reinstated.

The appellant, a negro, was in possession of a sachel or suit-case containing ten quarts of whisky. Two additional quarts were on the outside of the satchel at the time of the arrest. The whisky was in a black case setting in the mail-room of the depot where the appellant was employed as porter.

It seems from the testimony that a man about the depot had given a negro named Tom fifteen dollars upon the promise that he would bring him a bottle of whiskey. This man said that the appellant was not the one to whom he had given the money. Upon inquiry by the officers as to the whereabouts of the satchel in question, the appellant pointed it out to the officers. However, according to the testimony, he had previously pointed out another and different satchel, a brown one. He claimed that the satchel had been handed to him by a negro woman; that she had requested him to put it in the baggage-room; that he had undertaken to do so, having suspicion that it contained whisky but no interest in it. According to his testimony, he told her that he could not put it in the baggage-room at once but would do so when he got through with the business he then had on hand. His business related to carrying the mail. The distance between the mail-room and the baggage-room was about 1,000 feet. His employment did not permit his going to the baggage-room while on duty. At the time that the whisky was discovered in his possession, he made the statement that it had been given to him by a woman for the purpose stated.

There are no bills of exception, but the appellant insists that there is no evidence going to show that he possessed the whisky for the purpose of sale, and that in the absence of such evidence, his declaration at the time explaining his possession would rebut a prima facie case growing out of his possession of more than a quart of whisky. In support of this theory several cases are cited, among them being Largen v. State, Ex rel., Abney, 76 Tex. Rep. 328; American Cent. Ins. Co. v. Heath, 69 S.W. Rep., 235; also 57 Amer. St. Rep. 120, 85 U.S. 350, 22 Corpus Juris, 24, Jones on Evidence, par., 101.

In view of the evidence in the case, a discussion of the rules applicable to conflicting presumptions is not deemed either proper or necessary. The explanation of the appellant of his possession of the whisky was not so reasonable or consistent with the other evidence in the case as rendered it incumbent upon the jury to accept it as true. The woman whom he says gave him the whisky was a traveler; her testimony was never produced. According to his testimony, at the time she delivered the whiskey, he told her that he could not put it in the baggage-room. He and she were strangers. His conduct at the time he was called upon to point out the satchel in question was such as to indicate that he wanted to dissemble and pointed out another satchel than the one containing the whisky. The statute made the possession of more than a quart of whisky prima facie evidence that it was possessed for the purpose of sale.

The law applicable to the evidence was submitted to the jury in a charge which, in our judgment, fairly presented the issues. No suggestion that it be amended or supplemented was made by either bill or exception to the charge or by requested instruction. We are not prepared to say that the verdict is not supported by the evidence.

The judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.