Cook v. State

Appellant contends that the indictment having charged that the premises were "commonly known as the Maynard place, belonging to one Lee Barton," there was a failure of proof of such descriptives and therefore a lack of evidence to support the conviction. He does not contend that such allegations were primarily necessary, but merely that since they were written into the indictment they must be proved. We said in our former opinion that there was proof that the premises in question were commonly called the Maynard place. Mr. Carroll testified on the trial that he had owned the place commonly called the Maynard place about five miles east of Burnet and that he traded it to Lee Barton, — made him a deed to it. A number of witnesses in their testimony called the premises, the Lee Barton place. Appellant's wife swore that she lived on the "Barton place." Sheriff Crittenden testified that he knew said place as the Maynard place but it "was the Barton place at that time," referring to the time of the arrest herein. We thus have a case in which under the proof title vested in Barton and thereafter up to and including the time of the trial the premises were called the Lee Barton place. There is no suggestion in the record that the property had changed hands since its acquisition by Mr. Barton. In Rice v. Railway Co.,87 Tex. 93, Judge Gaines, speaking for our Supreme Court, said in reference to a land title: "A state of things once shown to exist is ordinarily presumed to continue, in the absence of proof to the contrary.

The gist of the offense for which appellant was on trial is that premises under his control and management were occupied by him and used for the purpose of storing, manufacturing, etc., intoxicating liquor. That such was the fact and abundantly shown by the proof, is manifest in this record. We think the proof of the descriptives mentioned was ample.

Appellant's motion for rehearing will be overruled.

Overruled.