Walton v. State , 386 S.W.2d 807 ( 1965 )

MORRISON, Judge.

The offense is possession of wine and whiskey in a dry area for the purpose of sale; the punishment, six months in jail and a fine of $500.00.

The witness Shields, a former employee of the Texas Department of Public Safety, testified that on the day charged in the information, as he was driving his patrol car outside the city limits, he observed two automobiles parked on a dirt road, that he stopped and observed Jack Lacy close the trunk of a Chrysler automobile, asked him where the driver of the other automobile was and was informed that he had gone off across the field. He stated that he looked over “a little bank” and observed the appellant “squatted there in the brush” and subsequently found a large quantity of beer, wine and whiskey near the place where appellant was apprehended. No intoxicants were found in appellant’s automobile, but a quantity was found in the automobile driven by Lacy. Shields observed fresh tracks in the damp earth leading from Lacy’s automobile to where the intoxicants were found. The intoxicants were labeled by the officers with Jack Lacy’s name and it was further shown that Lacy had plead guilty to the possession of the same intoxicants.

The only serious question presented is the failure of the court to grant appellant’s requested charge on circumstantial evidence.

Judge Hawkins in Peters v. State, 142 Tex.Cr.R. 146, 151 S.W.2d 592, stated the rule covering the necessity for giving the charge on circumstantial evidence as follows :

“ * * * where the evidence shows an opportunity or equal opportunity of another or others to possess the liquors charged to have been possessed by the accused, the State’s case, to be sufficient to convict upon circumstantial evidence must disprove such outstanding hypothesis. Such rule is complied with, however, when the facts show that such other person or persons exercised no control over, or possession of, the liquors, and had no opportunity to do so.”

The cases most nearly in point as to the necessity for giving the charge are Wynn v. State, 159 Tex.Cr.R. 300, 263 S.W.2d 566, and Williams v. State, Tex.Cr.App., 263 S.W.2d 776. These are companion cases and we will quote the facts set out in Wynn, supra:

“Appellant was seen to drive an automobile ‘behind the house’ and back up and drive off. One Williams was in the automobile with him. Some thirty minutes later, the same parties in the same automobile, with appellant driving, were seen to pull into the driveway. The two officers then approached the house from the rear. Williams got out of the automobile, went to the rear door of the south apartment, and was in the act of unlocking the door when the officers appeared. The officers told Wiliams to unlock the door, which he did. The apartment was vacant and unoccupied. A large quantity of beer and whisky was found in the bathroom thereof.

“There was evidence that Williams’s license to drive an automobile was, at that time, suspended. Other than a showing by the circumstances of possession by Williams of a skeleton key, there is no testimony suggesting who was in possession of the house. There is no testimony as to who was the actual owner of the house. There is an absence of any testimony identifying the ownership of the automobile in which the parties were riding.”

It is significant to point out that Williams’ case was also reversed for the same reason without setting forth the facts by a unanimous opinion of this Court.

“Tracks” standing alone are not sufficient to convict. Cayton v. State, 160 Tex.Cr.R. 31, 267 S.W.2d 143, and Garrett v. State, Tex.Cr.App., 366 S.W.2d 584.

Wynn and Williams, supra, require the giving of the requested charge and call for a reversal of this conviction.

For the error pointed out, the judgment is reversed and the cause is remanded.