McCarty v. State , 123 Tex. Crim. 34 ( 1933 )

On the original hearing the appellant's brief was carefully examined and considered. The brief, together with the motion for rehearing and the record, has been again carefully reviewed.

In bill of exception No. 1, the testimony of the officers who searched the house is opposed by the appellant upon the ground, as stated in the bill, that "the description fails to state how many houses were on the street to be searched, and that it failed to state the location of the house to be searched, except to state that it was on the East side of said street." The affidavit and the warrant are both copied in the bill. In the affidavit for the search warrant the following is stated: "The private residence and buildings and premises occupied by Willie McCarty, the same being situated in the Southeast part of the town of Sanger, Texas, and being on the East side of the Santa Fe Railroad, and being on the East side of the Second Street East of the Santa Fe Depot and about a block South of the Sanger to Aubrey public highway; that the said described place is occupied by Willie McCarty as his residence; that intoxicating liquor is being sold and manufactured in said residence by the said Willie McCarty."

The same description is contained in the warrant.

The objection to the evidence is not deemed tenable. There is nothing in the bill to show that there were any other houses on the same street on which the dwelling in question was located. However, the description, as copied from the affidavit above, is deemed sufficient, although there may have been other houses on the street. The house is identified as one controlled and occupied by the appellant. We find nothing in any of the precedents cited by the appellant which would sustain the contention that the description was insufficient.

The refusal to give the instruction embraced in bill of exception No. 2, as set out in the original opinion, presents no error. The exclusive possession, control, and management of the intoxicating liquor in the appellant was not essential to constitute his guilt. See Bennett v. State, 113 Tex. Crim. 460; Van Zandt v. State, 109 Tex.Crim. Rep.,5 S.W.2d 771; Spero v. State, 5 S.W.2d 145.

The refusal to instruct the jury, as set out in bill of exception No. 3, which instruction is copied in the original opinion, is deemed to have been a proper ruling of the court under the facts. The guilt of the appellant primarily did not depend upon his ownership of the residence searched, and in which the whisky was found. Whether the residence in which the officers claimed to have found the whisky was the residence of the appellant was a controverted issue of fact. The officers searched the house which they understood to be the home of the appellant. His mother and grandmother also lived there. Some of the whisky found was in a stovepipe under the house. In the officers' testimony there was exhibited other evidence tending to support the state's theory that the appellant possessed intoxicating liquor for the purpose of sale. Appellant testified that he did not live in the house which was searched, and in which the whisky was found; that it was not his dwelling-place; and that he had no connection with the ownership of the whisky. If the house searched and in which whisky was found was the residence of the appellant, the warrant possessed by the officers authorized them to search it, and the circumstances were sufficient to identify the appellant as the possessor of the whisky. The quantity of whisky found was sufficient to meet the law declaring that the possession of more than one quart of whisky is prima facie evidence that it was possessed for sale. Article 671, P. C., 1925. If the house searched and in which the whisky was found was not the residence of the appellant, he would not be in a position to complain of the search of it. The court committed no error in refusing to instruct the jury that if the house searched did not belong to the appellant, there could be no conviction. See Craft v. State, 107 Tex.Crim. Rep., 295 S.W. 617; also Flower v. State, 113 Tex.Crim. Rep..

The fact that the appellant possessed intoxicating liquor in the home of some other person would not exculpate him if he possessed it for the purpose of sale. There are several precedents upon the subject. See Craft v. State, supra.

A number of questions are brought forward in the motion for new trial, including the complaint of various matters which have been discussed above touching the sufficiency of the affidavit and search warrant, and other matters which have been mentioned in the foregoing opinion; also certain alleged remarks of counsel for the state. Complaint of remarks of counsel and the ruling upon the introduction of evidence are not available, in the absence of bills of exception. See Johnson v. State,111 Tex. Crim. 395; Rollins v. State, 53 S.W.2d 786; Mershon v. State, 55 S.W.2d 836; Cade v. State,258 S.W. 484. There are no bills relating to the rulings of the court and the argument of counsel. The bills of exception relating to the introduction of evidence have hereinabove been discussed.

The circumstances detailed before the jury are deemed sufficient to support the conclusion of guilt. Therefore, the motion for rehearing is overruled.

Overruled.