Cox v. State , 157 Tex. Crim. 134 ( 1951 )

WOODLEY, Judge.

Upon a jury trial, appellant was convicted for possession of whiskey in a dry area for the purpose of sale, and his punishment was assessed at a fine of $500.

Two inspectors for the Texas Liquor Control Board, following a call which prompted them to go to De Soto, an admittedly dry area in Dallas County, Texas, obtained a search warrant, and proceeded to search the premises and car of appellant Cox. In the building which appears to have been in use as a domino hall and for the sale of soft drinks to the players, the officers found three one-half pint bottles of whiskey.

In the locked trunk of appellant’s car parked nearby, they found 25 more one-half pint bottles of whiskey.

The officers testified that appellant told them that the car and the whiskey belonged to him.

Appellant and his witnesses testified that the whiskey found by the officers was purchased by appellant that day with funds contributed by a number of persons, as had been their custom on past weekends. They denied that the whiskey was possessed for the purpose of sale.

Appellant testified that he went for the whiskey around noon and returned with a case of half pints around 3 o’clock. His witness Hill testified that he paid appellant $3.00 just before sundown or around 5:30 P.M.; Witness Clark said he put in $4.00 after they began to play dominoes about 1 o’clock; Witness Elerson said he put in his money in the morning and that appellant went for the whiskey about 10 A.M. and returned around noon.

Appellant contends that the undisputed evidence shows that the whiskey was in the possession and control and was jointly owned by all of those present, and therefore there is not sufficient evidence to sustain the conviction.

We overrule this contention. The state’s proof was to the effect that appellant was in possession of the whiskey and claimed to be its owner.

It is next contended that in view of the testimony of appellant and his witnesses to the effect that the whiskey was there for their use and not for sale, that the prima facie case of the state, because of the amount of whiskey found in appellant’s possession, was overcome.

The testimony, if in fact it showed a defense, was for the jury who resolved the issue against appellant’s contention.

Complaint is made of the argument of counsel for the state wherein he said:

“The people of De Soto are asking the jury to convict this defendant.”

The language is quite similar to that which has caused the reversal of several convictions. See Porter v. State, 154 Tex. Cr. R. 25, 226 S.W. (2d) 435; Peysen v. State, 136 Tex. Cr. R. 127, 124 S.W. (2d) 137.

In this case however, the trial court promptly sustained the objection to such argument and instructed the jury not to consider the remarks We do not regard the argument to be of such prejudicial character as to have required the trial judge to declare a mistrial, and appellant did not request that he do so.

In view of the instruction of the court to the jury, reversible error is not shown.

Other bills of exception which complain of remarks of counsel in argument have been examined, and we find no prejudicial remarks requiring a reversal of the conviction.

Appellant is in no position to now complain of the court’s charge to the jury. No objections appear to have been made to the charge, and no charges in writing requested.

The evidence being sufficient to sustain the verdict, and no reversible error appearing, the judgment is affirmed.

Opinion approved by the court.