Watson v. State , 114 Tex. Crim. 117 ( 1929 )

Conviction for possessing intoxicating liquor for purposes of sale; punishment, eighteen months in the penitentiary.

Appellant and her husband lived together. The house was raided and 86 bottles of beer found which, upon analysis, had content of more than 5% of alcohol by volume. Fifty-five empty bottles were found scattered around, and an opened bottle not yet consumed was on the table. No one was present on the premises save appellant at the time of the raid. A capping machine and some extra caps, and a large jar were also found. Part of the full bottles of beer were in a case, part in a large box.

Appellant made a motion for severance, setting up that she was under indictment in causes 8802 and 8803, and that her husband was under indictment in causes 8800 and 8801. She alleged that said offenses grew out of the same transaction and transactions, and that there was not sufficient evidence against her husband in either case to warrant his conviction, and she prayed that he might be tried in each case before she was put to trial herein. The court below heard evidence, and his order overruling the motion for severance recites that cause No. 8800 against said husband was dismissed, and that in cause No. 8801 her husband was charged with manufacturing intoxicating liquor, and the court was of opinion that the instant case should be first tried. As we understand the record both causes against this appellant charged her with possession. The bill of exceptions complaining of the action of the court in refusing the severance is accompanied by the testimony of the appellant which was given in support of the motion. She testified on direct examination that the indictment against herself and her husband grew out of the same transaction, but on cross-examination she admitted she did not know what testimony the State would offer upon her husband's trial or what proof would be made therein. No other evidence was introduced. In our opinion the action of the court in declining to grant the motion for severance was justified. Practically the same questions were presented in Hill v. State,95 Tex. Crim. 585, and French v. State, 98 Tex.Crim. Rep..

The court told the jury that "possession" meant the actual personal care, control and management of the property. This was substantially correct. We know of no law exonerating a woman from conviction and punishment for crime merely upon her claim that her husband was the guilty party. The question is one of fact, and it is for the jury, and upon ample proof of the possession by a woman of a large quantity of alcoholic liquor, we would not feel justified in overturning the verdict of the jury adjudging her to be guilty of possession of same.

Finding no error in the record, the judgment will be affirmed.

Affirmed.

ON MOTION FOR REHEARING.