Allman v. State

• Decision Date: 24 June 1927
• Docket Number: (No. 11081.)
• Citation: 296 S.W. 580
• Parties: ALLMAN v. STATE.
• Court: Texas Court of Criminal Appeals

296 S.W. 580

ALLMAN v. STATE.

(No. 11081.)

Court of Criminal Appeals of Texas.

June 24, 1927.

Appeal from District Court, Wilbarger County; Robert Cole, Judge.

Howard Allman was convicted of unlawful possession of intoxicating liquor, and he appeals. Reversed and remanded.

Storey, Leak & Storey, of Vernon, for appellant.

Sam D. Stinson, State's Atty., and Robt. M. Lyles, Asst. State's Atty., both of Austin, for the State.

MORROW, P. J.

The offense is the unlawful possession of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

The home of Mrs. Sutton was searched by officers possessed of a search warrant. Besides Mrs. Sutton, there were in the house the appellant and his wife, and a man by the name of Stephens. Four half gallon jars containing whisky were discovered on the premises. If we comprehend the testimony, it is to the effect that in the closet near the flue a hole had been cut in the floor, and the whisky was found underneath the floor. A witness named Fowler testified that upon one occasion he was present when a negro, by purchase, obtained a bottle of whisky from the premises. Besides the witness, the other persons mentioned above were present. Appellant's wife was a sister of the witness. The witness gave no details as to who delivered the whisky or from whence it came. He said he did not know.

Appellant testified that at the time of the alleged sale of whisky he was in another state; that at the time of the raid he and his wife were occupying a room in the house which they rented from Mrs. Sutton; that he had no knowledge that there was whisky upon the premises. He said:

"I was in the house as a guest when the officers arrested me. I had no connection with the liquor."

Mrs. Sutton, in her testimony, claimed that her husband was addicted to the use of whisky; that he had been indicted for selling whisky, and had been gone about eight months; that before his indictment and departure she objected to his having whisky at his home, and in consequence of that attitude, when he had whisky there, he always hid it. She said she had no knowledge that there was whisky upon the premises, and knew nothing about a sale of whisky to a negro.

Appellant's wife testified that she had no knowledge of the whisky; that they were occupying the room, and were asleep at the time the raid was made. The testimony is to the effect that the appellant and his wife had been married only a short time, and had been on the Sutton premises but a few days when the raid was made.

Edmondson, the sheriff, testified in behalf of the state, and said he was caused to go to the Sutton premises by the fact that a city policeman came and told him that whisky was being sold at the Sutton premises; that the policeman had taken a negro there to buy some liquor; that the policeman remained outside of the house, obscured by the darkness, while the negro went in and got the whisky. It was shown by the bill of exceptions that none of the parties were present at the time of the conversation between the sheriff and the policeman; that at the time of the trial the policeman had...