Petty v. State , 109 Tex. Crim. 58 ( 1928 )

The offense is possession of intoxicating liquor for the purpose of sale, the punishment confinement in the penitentiary for four years.

Appellant sought a continuance because of the absence of Doctor A. W. Thompson. In order to avoid the continuance, the state made the following admission:

"Now comes the state by her District Attorney and admits that if the said Doctor A. W. Thompson were present he would testify that he had at various times prescribed whiskey for the defendant's wife and for this defendant, and that said whiskey was a necessary medicine at all times for defendant's wife and was necessary as a medicine for the defendant himself at the various times prescribed and as the physician of this defendant's wife, he has advised that whiskey be kept in this defendant's house at all times for the use of this defendant's wife, and that said testimony is true."

Where defendant presents an application for a continuance for want of the testimony of an absent witness and state's counsel admits the truth of the facts proposed to be proved by said witness, it is not permissible for the state to subsequently contravene the truth thereof on the trial of the case. Branch's Annotated Penal Code, Sec. 325, p. 191; Roberts v. State,143 S.W. 614. Also the jury are bound by the admission, and must consider the testimony of the absent witness to be true. Underhill on Criminal Evidence, Third Edition, Section 425. The burden rested upon the state to show that appellant possessed intoxicating liquor for the purpose of sale. In attempting to discharge such burden, it was shown that appellant possessed more than a quart of whiskey, which had been discovered by officers in his home. There was no evidence of either a sale or of an attempted sale of whiskey. Proof of possession of more than a quart of intoxicating liquor is prima facie evidence of possession thereof for the purpose of sale. Art. 671 P. C., "prima facie" evidence is merely proof upon which the jury may find a verdict, and is not conclusive. Walden v. State,272 S.W. 139. Although possession of more than a quart of intoxicating liquor is prima facie evidence of the possession thereof for the purpose of sale, the accused may show legality of possession. Caldwell v. State, 289 S.W. 411. Possession of intoxicating liquor for medicinal purposes is lawful. Art. 668, P. C. Appellant defended on the ground that he possessed the liquor in question for medicinal purposes. As stated, the state admitted that whiskey was a necessary medicine at all times for appellant's wife, and that he had been advised by his physician to keep whiskey in his home at all times for her use. This admission was conclusive as to the facts embraced. The state was not authorized to controvert it. The jury were bound to accept it as true. In this condition of the record the admission controverted the prima facie case arising from the possession of more than a quart of whiskey. This is not to say that the state would, on another trial, be bound by the admission made on the present trial.

In his argument the County Attorney scoffed at the idea that appellant's wife required whiskey as a medicine, and, in effect, charged that appellant's defense was fabricated. The qualification appended to the bill of exception preserving the complaint lodged against the argument shows that appellant failed to object to the argument and made no request that the jury be instructed not to consider it. In this condition of the bill no error is presented. However, the argument was highly improper and would have constituted reversible error if complaint had been made at the time and properly preserved by bill of exception. In the face of the admission hereinbefore discussed, it was improper and prejudicial for the County Attorney to controvert in argument or otherwise the facts embraced in said admission.

The judgment is reversed and the cause remanded.

Reversed and remanded.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING BY STATE.