McFarland v. State , 110 Tex. Crim. 101 ( 1928 )

Conviction for possessing intoxicating liquor for purposes of sale; punishment, one year in the penitentiary.

This is the second appeal of this case. The opinion on former appeal will be found in 106 Tex.Crim. Rep..

It is shown that appellant lived at the home of Roy Cowser. Armed with a search warrant, officers searched the premises of Cowser and in his barn found a gallon jug of whisky under the floor, also two half gallon fruit jars and a quart fruit jar of whisky in a tow sack in the crib. This search was about April 15, 1926. A witness swore that about three or four days before said date he, with a brother of appellant, was in a car and saw appellant standing by himself by another car in the road. Appellant asked them if they would have a drink. Witness declined, but appellant and his brother both took a drink out of a jug which appellant got out of the car by which he was standing. The jug was then put back in said car and both cars went together to Roy Cowser's place. There appellant got out of the car, took from same a jug and a tow sack which he took toward the barn. The jug was not in the sack. On this trial Cowser testified that the whisky in the barn was not his and that he knew nothing of it. He also testified that appellant had told him that the whisky was his. We deem it unnecessary to discuss or analyze this testimony. It is plain that it justified the verdict finding appellant guilty of possessing the jug and tow sack of whisky. Incidentally we often call attention to the fact that the ownership of premises being in another than the accused, will not necessarily operate to prevent conviction of one charged with possession of intoxicating liquor, when such liquor is found on such premises.

The State offered to prove by the sheriff what he found as a result of the search made by him under said warrant. Appellant objected because no predicate had been laid showing the legality of such search. The State then offered the affidavit and search warrant, to the admission of which various objections were made, chiefly that same did not authorize a search of the premises of this appellant; that the affidavit set out no facts; no premises were identified in the affidavit as the property of this appellant, but were shown therein to be the property of Cowser. We think the objections properly overruled. This court has uniformly held that when the legality of a search under a warrant is challenged, it must appear that the premises so searched belonged to or were under the care, control and management of the party complaining, else his right to object will be denied. In Craft v. State, 107 Tex. Crim. 130, 295 S.W. Rep. 617, authorities are cited. We have in no instance held otherwise, and are still of the opinion that the doctrine is correct.

Objections to the legality of the search caused the introduction of the affidavit and search warrant, in order to demonstrate the regularity of said search.

The question of the possession of the liquor was a wholly different matter, and was an issue of fact under the testimony. Appellant having been seen with a jug from which he and his brother took a drink, which jug he was later seen carrying, together with a tow sack, towards Mr. Cowser's barn; the finding of the jug of whisky and a tow sack'containing jars filled with whisky in that barn a few days later, coupled with the testimony of Mr. Cowser that it was not his and that he knew nothing of it, and the further fact that appellant did stay at said place, seems to afford full justification for the action of the jury in finding appellant guilty.

Complaint is made of the charge of the court defining possession. We think the complaint without merit.

Finding no error in the record, the judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.