Boyte v. State , 160 Tex. Crim. 440 ( 1954 )

MORRISON, Judge.

The offense is the possession of whisky and wine in a dry area for the purpose of sale; the punishment, one day in jail.

Constable Norton and Texas Liquor Control Inspector Sparks testified that they went to the house occupied by the appellant, her husband and her children, armed with a search warrant and that they did not find any liquor in the house but did find some in trash outside the back fence.

Appellant, testifying in her own behalf, denied that she knew anything about the liquor found outside her fence and back of her outhouse.

The record is silent as to the presence of the appellant’s husband at the time of the search.

There is an entire absence of any showing that the appellant exercised any control or management of the liquor in question so as to implicate her rather than her husband.

In Wade v. State, 147 Texas Cr. Rep. 613, 183 S.W. 2d 576; Gonzales v. State, 143 Texas Cr. Rep. 48, 156 S.W. 2d 988; Peters v. State, 142 Texas Cr. Rep. 146, 151 S.W. 2d 592; Watson v. State, 114 Texas Cr. Rep. 117, 24 S.W. 2d 830; and Smith v. State, 90 Texas Cr. Rep. 273, 234 S.W. 893, we have held such evidence insufficient to support the conviction.

The judgment is reversed and the cause remanded.