McLaughlin v. State , 157 Tex. Crim. 384 ( 1952 )

BEAUCHAMP, Judge.

The appellant was convicted for the possession of beer for sale in a dry area. Two former convictions for a like offense were alleged for the purpose of enhancing the penalty which resulted in a fine of $1,000.00 and one year in jail.

The evidence and the issues involved are tersely stated in appellant’s brief as follows: “The alleged offense occurred on the night of June 2, 1951. On that night, according to the evidence offered by the State, Leon Bowman, Supervisor of the Texas Liquor Control Board Office at Abilene, accompanied by two other liquor control board men, went to the home of the defendant armed with a search warrant. They searched the house and grounds without finding anything. The liquor control board men testified that they then followed some tracks leading from the front door of the defendant’s house to a car parked on a vacant lot, belonging to the defendant. Twelve cases of beer were found in this car. It was and is the defendant’s contention that the state had shown no evidence of possession, care or control or custody on the part of the defendant of this beer.”

Thus is presented the one issue requiring consideration of this appeal. Enlarging on the evidence above stated, it is shown that the car in question had been on this vacant lot adjoining appellant’s house for at least two months; that three weeks prior to the time of the search an officer asked who the cars on that lot belonged to and appellant replied that they were his. In the trial of the case it is shown by the defendant that some twenty-three days after the search another party transferred the ownership of this car to still another, who claimed to be the owner at the time of the trial. The evidence is very clear and uncontroverted that the car was a wreck and on the lot where appellant’s son was taking parts off of wrecked cars. It would not be necessary under the law to give a transfer in the sale of a wrecked automobile which is to be dismantled, as was apparently the purpose of the cars described on the lot. Furthermore, it is not necessary to show the ownership of the car in appellant if it was in his possession on his premises, as is the case. If the circumstances are sufficient to convince a jury that it was under his control then they are warranted in finding that he was in possession of the beer. If this were not the law “A,” living in Dallas, could own a wrecked car in the back yard of “B,” who lives in Houston. “B” could use it as a depository for illicit liquor. In turn, “A” could use a car belonging to “B” in Dallas as a storage for his liquor and the defense would be that he did not own the car. Appellant has cited no authority to sustain the contention and we know of none.

Again, the evidence shows that this car was only twelve steps from the appellant’s residence and that it had been raining during the day and was raining at that particular time. The officers, in leaving the house, followed tracks leading to the car and there found the 12 cases of beer, consisting of 288 twelve ounce cans.

Appellant contends that under the case of George v. State, 144 Tex. Cr. R. 183, 162 S.W. 2d 110, this evidence of tracks has no probative force to establish the guilt of appellant. In the George case the situation was quite different. Officers had searched the residence and, though they found the wife disposing of a mixture which had the odor of whisky, it was under circumstances which would not support a conviction. From the back yard they found tracks of one individual only going through a cane patch, across a fence and some distance into a corn field, where a large quantity of liquor was found. This cane patch and corn field belonged to another person who resided nearby. The proof showed only that some individual had gone to the place where the liquor was found and had returned. It showed no beaten path and there was no other circumstance indicating an exercise of ownership or control in the accused. The circumstances in this case are quite different. When the officers approached the house and knocked on the door the appellant invited them in and told them he was expecting them. Muddy tracks which had not been rained out probably indicated that they were fresh and, considered in conjunction with his statement, would support to some degree the conclusion of the jury that he had placed the beer in the car after receiving whatever information caused him to be on the lookout for the officers. If other evidence than the finding of the liquor in the car on his premises should be needed to support the conviction, this incident added something and certainly did not help the defense.

Another question is raised in the case because of a voluntary statement of the representative of the Texas Liquor Control Board, to the effect that his predecessor, before leaving, had taken him around to show him the “places.” We would have to speculate a good deal to reach a conclusion that he conveyed information to the jury so damaging as to injure appellant’s case, under the circumstances. There is nothing inflammatory about it and instruction of the court would take care of the situation with a jury composed of reasonable men.

We find no reversible error and the judgment of the trial court is affirmed.