Overley v. State , 104 Tex. Crim. 386 ( 1925 )

In a supplemental motion for rehearing appellant attempts to bring before this court by affidavits, original evidence relating to this case. Such practice is not allowable. Ours is not a court or original jurisdiction. We pass upon the case on the record made in the court below.

Appellant introduced as witness in her behalf her daughter. Other testimony showed that when the officers went to the premises this daughter ran into the bath room and proceeded to attempt to destroy a number of containers containing intoxicating liquor. The same daughter was a witness in behalf of appellant and testified that the liquor and containers mentioned were brought to the house by one Jenkins the night preceding the visit of the officers. We said in our former opinion: "Under this condition of the record the court committed no error in permitting Jenkins to testify that he did not take the whiskey in question to the home of appellant on the night before, but that he was at the house that night and purchased from Juanita Overley a pint of whiskey." Juanita Overley was the daughter above referred to and seems to have been acting with her mother, appellant herein, and we have no doubt as to the correctness of the action of the trial court in permitting Jenkins to testify to his purchase of a pint of whiskey from the daughter the night preceding the raid.

The burden being upon the state to prove not only the possession of the liquor in question, but that it was possessed for the purpose of sale by appellant, it was competent to prove other sales by her within a reasonable time prior to the particular possession relied on in this case. The cases of Johnson v. State, 266 S.W. Rep. 155, and Gothard v. State, 270 S.W. Rep. 177, are on facts showing transactions much more remote than appears here.

Believing the case properly disposed of in our original opinion, the motion for rehearing will be overruled.

Overruled.