Jamison v. State , 161 Tex. Crim. 428 ( 1955 )

WOODLEY, Judge,-

Appellant was convicted of the offense of unlawfully possessing whisky, and gin in a dry area, for the purpose of sale, and his punishment assessed at 30 days in jail and a fine of'$100. : . •

The state offered evidence to the effect that the home of appellant, being the premises located at 1408 Franklin Street in Bonham, Fannin County, Texas, occupied by appellant, was . searched under authority of a search warrant. .

The' warrant and affidavit theVefor described the premises to be'searched as: “a private dwelling located in fiannin County, Texas, described as about'a'four room house painted white and facing west located oh the east side of Franklin Street in Bonham, Fannin County, Texás, house number 1408, and all outbuildings and vehicles on the above described premises, and being the premises occupied by, in charge of and under the control of Sonny Jamison.”

The search resulted in the finding and seizure of several half-pints of whisky. Two half-pints were found under the-east side of the house, and ten half-pints were found “in a sack under a bush in the northwest corner of the yard about 5 steps from the sidewalk and about' IS or 20 steps from the northwest corner of the' house.”

The evidence further shows “that there was a fence between the house of Sonny Jamison and the house to the north of. Sonny Jamison’s house, and that the liquor found in a sack under a bush was on the same side of that fence as Sonny Jamison’s house”; that the house was situated in a Negro settlement on a narrow lot with houses close together. •

The officers and state witnesses testified that they did not know the official designation of the street where the search was made, and did not know the property lines of the various property owners along the street.

One of the officers was recalled, after he. had again visited the location, and testi-, fied that the street where,the search was made was designated as Franklin Avenue. This .was further shown by a copy of the plat of that part of the City of Bonham, and by the testimony of appellant’s attorney. Mr..Cole, the attorney, further testified that he did not know of his own knowledge, whether there -were other thoroughfares situated in Bonham which went by the. name of Franklin.

Appellant attacks' the admissibility of the evidence obtained as a result of the search, contending that the warrant was. not sufficient to authorize thei‘search.

The evidence mentioned shows that the street upon which - appellant resided was known to the witnesses as Franklin Street, and there is nothing to show that there was any other thoroughfare in Bonham bearing the name Franklin.

- Occupancy and ownership as stated in' the affidavit may be looked to in determining whether the premises searched were those described in the affidavit and search warrant. Wood v. State, 156 Tex.Cr.R. 419, 243 S.W.2d 31; Crumpton v. State, 147 Tex.Cr.R. 54, 178 S.W.2d 273.

The trial court-did not err in failing to exclude the evidence because the official designation of the street upon which the premises was located was Franklin-Avenue rather than Franklin- Street.

Appellant complains that the trial court should have givens a charge on circumstantial evidence. He distinguished between the pint of whisky found under the house and that found in the corner of the yard, and calls attention to the fact that there was not a sufficient quantity of whisky found under the house to give rise to the statutory presumption that it was possessed for the purpose of sale.

The state did not rely upon circumstances such as a path leading to the whisky in the corner of the yard, but on the undisputed evidence that appellant occupied the premises upon which all of the whisky was found. It was upon his side of the fence, part of it in the corner of the yard and' the remainder linder the house. In the absence of evidence that some other person also occupied the premises, or had equal opportunity with appellant to have controlled' or possessed the whisky, the evidence was sufficient to show that appellant possessed the whisky found in both places upon his premises, and to give rise to the presumption that it'was possessed for sale.

The rule is thus stated in Brown v. State, Tex.Cr.App., 261 S.W.2d 717, 718: “ * * * where possession alone is relied upon to show an intent to sell, the matter becomes subject to a charge on circumstantial evidence, provided there are other persons relative to whom an outstanding hypothesis might arise as to, the possession .of the intoxicating liquor.”

The evidence sustains the conviction and no reversible error appears.

The judgment is affirmed.