Alston v. State

• Decision Date: 18 January 1950
• Docket Number: No. 24600,24600
• Citation: 154 Tex.Crim. 148,226 S.W.2d 443
• Parties: ALSTON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 443

226 S.W.2d 443

154 Tex.Crim. 148

ALSTON v. STATE.

No. 24600.

Court of Criminal Appeals of Texas.

Jan. 18, 1950.

H. F. Grindstaff, Rotan, Jack Railsback, Aspermont, for appellant.

George P. Blackburn, State's Atty., of Austin, for the State.

DAVIDSON, Judge.

The unlawful possession of beer for the purpose of sale in a dry area is the offense; the punishment, a fine of $100.

By virtue of a search warrant, peace officers found upon the premises occupied by appellant as his place of residence and within thirty feet of his house two cases of beer, each containing twenty-four 12-ounce cans, and, in addition, four cans of beer.

Appellant admitted the possession of the beer, and testified that one case remaining not drunk at the date of the search and belonging to his father-in-law was one of four cases which were brought to his place a day or two previously by visiting relatives and friends. The other case belonged, he insisted, to another member of the party. He insisted that none of the beer was possessed for the purpose of sale and that none was sold. He denied prior knowledge that the beer was to be brought to his place.

Appellant's guilt was predicated upon the prima facie evidence rule making the possession of more than twenty-four 12-ounce containers of beer prima facie evidence that it is possessed for the purpose of sale. Art. 667-25(b), Vernon's P.C.

Appellant's admission of the possession of the beer rendered untenable any objection to the sufficiency of the search warrant and to the finding of the beer by the officers as a result of the search.

Since there was no exception to the charge of the court and there were no requested charges, the alleged errors in the court's charge cannot be considered.

Possession, within the contemplation of this prosecution, is the care, control, and management of the beer. Ownership of the beer is not necessary to constitute possession, and is not an essential element thereof. Hence, the claimed newly-discovered evidence corroborating appellant as to his claim of nonownership of the beer did not require the granting of a new trial.

The verdict of the jury, upon which the judgment of conviction is predicated, reads as follows: 'We the jury find the defendant Guilty with the possession of more beer than the law allow and assess his fine at $100.00 and cost.'

It is insisted that such verdict is vague, indefinite, uncertain, and fails to reflect either a finding by the jury that appellant was guilty of the offense charged or a finding of the constituent elements necessary to constitute guilt of possessing beer for the purpose of sale.

In determining this question it is deemed pertinent to call attention to certain essentials relative to the offense of possession of beer for the purpose of sale in a dry area and the function of the prima facie evidence rule in relation thereto.

The mere possession of beer in a dry area is not unlawful; it is only the possession of beer for the purpose of sale constitutes an unlawful act. Art. 666-4(b), P.C. The amount of beer possessed does not enter into that offense. The possession of one bottle of beer for the purpose of sale in a dry area is as much a violation of the law as is the possession for that purpose of more than a case of beer. On the other hand, the possession of beer in a dry area, regardless of amount, is not unlawful so long as it is not possessed for the purpose of sale.

The burden cast upon the State to establish the unlawful purpose for which the beer is possessed as a precedent to a conviction was the motivating cause, no doubt, of the Legislature enacting what is known as the prima facie evidence statute, Art. 667-25(b), Vernon's P.C. By this statute, the possession of more than twenty-four 12-ounce bottles or cans of beer in a dry area is made 'prima facie evidence of possession for the purpose of...