Clark v. State , 145 Tex. Crim. 63 ( 1942 )

KRUEGER, Judge.

The conviction is for the offense of possessing whisky in a dry area for the purpose of sale. The punishment assessed is confinement in the county jail for a period of sixty days.

The State’s testimony, briefly stated, shows that- on the afternoon of September 5, 1941, the officers, armed with a search warrant, went to appellant’s apartment over a garage and made a search thereof. As a result of the search they found some whisky in one-half pint bottles, but the testimony is very hazy as to whether they found more than a quart. However, inasmuch as we will dispose of this case upon another question, we do not deem it necessary to discuss the sufficiency of the evidence to warrant the trial court in submitting to the jury the law of prima facie evidence as it relates to a violation of the local option law.

Appellant testified in his own behalf to the effect that he rented from Marvin Williams an apartment over a garage and was living- there at the time in question. He said that when the officers came to make a search he had a quart of whisky which he had theretofore purchased in Dallas and which he had put in half-pint bottles; that he had this whisky, not for sale, but for his personal use; that he had a weak heart; that his circulation was bad and he used it as a Stimulant.

Bill of Exception No. 1 reflects the following occurrence: After the State and defendant had rested the State was permitted to prove by an agent of the Texas Liquor Control Board, over appellant’s strenuous objection, that two or three days prior to the time appellant’s apartment was searched and the whisky in question was found he (the agent) was at Marvin Williams’ place of business; that he saw Williams go across the street to the bottom of the stairway leading to appellant’s apartment,. where he went out of sight at the foot of said stairway and immediately came back across the highway with three half pints of whisky which he (the witness) purchased from Williams. Appellant promptly objected to this testimony on the ground that it showed the commission of an extraneous offense with which the defendant was not connected; that it took place out of his presence and hearing, was hearsay, prejudicial, etc. Ordinarily, evidence of extraneous offenses is not admissible unless it tends to prove intent, system or identity where the same is an issue, and then it is not admissible unless appellant’s guilt of the extraneous offense is. shown.. See Wells v. State, 118 Tex. Cr. R. 355; Williams v. State, 38 Tex. Cr. R. 128, 41 S. W. 645; Morgan v. State, 62 Tex. Cr. R. 120; Sawyer v. State, 104 Tex. Cr. R. 522, (see p. 531). While it is true that intent was an issue in this case, still there is not any evidence from any source which connects appellant with the commission of the extraneous offense.

Being of the opinion that the learned trial judge fell into error in permitting the introduction of said testimony, the judgment is reversed and the cause remanded.

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