Young v. State , 111 Tex. Crim. 17 ( 1928 )

Offense, the unlawful possession for the purpose of sale of intoxicating liquor; penalty, two years.

Officers observed appellant coming from his private residence to his car with a box under his arm. Apprehending appellant, they discovered that the box contained four half-gallon fruit jars of whisky. Appellant was a negro and another of his race was in the car with appellant. When the officers blocked appellant's way with their car, he reversed his car and was again blocked by the officers before being arrested. Appellant introduced no testimony. It is vigorously contended that the evidence is insufficient. It is especially contended that possession was not sufficiently shown and that if the evidence is sufficient to show possession, it is entirely insufficient to show possession for the purpose of sale. The suggestion is made that it nowhere appears that either the car or the house belonged to appellant. The officers referred to them as "his car" and "his residence," and no issue was made of this.

"The proof of ownership in the trial of a criminal case does not contemplate an inquiry concerning in whom the legal title is reposed. It was enough to prove that the property was in the possession of the appellant; that it was under his care, management and control, at the time the whisky was found upon the premises." Hubbard v. State, 94 Tex.Crim. Rep..

The above evidence is within this rule and sufficiently answers the contention that no sufficient proof of possession was shown. Regarding the proof as to the purpose for which he possessed it, Art. 671, P. C., makes the possession of more than one quart of intoxicating liquor prima facie evidence of guilt. Appellant contends, however, that it is not shown by any fact or circumstance that the whisky was possessed for the purpose of sale. We regard the attendant circumstances as meagerly suggesting that appellant had the whisky for an unlawful purpose. Regardless of this, however, we think the terms of Art. 671, P. C., foreclose this matter against appellant. This article has been held valid many times. Stoneham v. State, 99 Tex.Crim. Rep.; Reynosa v. State,100 Tex. Crim. 218; Newton v. State, 98 Tex.Crim. Rep.. Appellant was found in possession of four half-gallon fruit jars of whisky and the attendant circumstances do not suggest that it was possessed for a lawful purpose. If the above article of the statute means what it says, this evidence was sufficient to support a conviction.

It was said in Raymond v. State, 106 Tex.Crim. Rep., that the proof of the possession of intoxicating liquor in an amount beyond a quart makes out a prima facie case of guilt, which is sufficient to overcome the presumption of innocence and to support a verdict of guilty. See also Harry v. State, 102 Tex.Crim. Rep..

In those cases cited by appellant where the evidence has been held insufficient for a lack of evidence showing that the whisky was possessed for the purpose of sale, it will be found, we think, upon close examination that the attendant facts and circumstances were such as to affirmatively raise a reasonable doubt as to whether it was possessed for such purpose.

Complaint is made of the following paragraph of the Court's charge:

"Wherever possession for the purpose of sale is made unlawful the possession or proof of possession of more than one quart of intoxicating liquor shall be prima facie evidence of guilt; but the person charged shall have the right to introduce evidence showing the legality of such possession, but the possession of one quart or less would not raise such presumption."

This is the language of Art. 671, P. C., except the last clause, against which appellant particularly directs his attack. This is but a statement of the converse of the language of the statute and we do not think it could have injured appellant. We are inhibited by Art. 666, C. C. P., from reversing any case for an error in the charge, "unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial." It was unnecessary to add the last clause and same should have been omitted, but we do not believe it could have possibly operated to injure appellant.

The judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.