Clark v. State, 13882.

• Decision Date: 21 January 1931
• Docket Number: No. 13882.,13882.
• Parties: CLARK v. STATE.
• Court: Texas Court of Criminal Appeals

35 S.W.2d 420

CLARK v. STATE.

No. 13882.

Court of Criminal Appeals of Texas.

January 21, 1931.

Rehearing Denied February 18, 1931.

Appeal from District Court, Ward County; J. A. Drane, Judge.

T. F. Clark was convicted of possessing intoxicating liquor for purposes of sale, and he appeals.

Affirmed.

Rutledge Isaacks and L. A. Dale, both of Pecos, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

LATTIMORE, J.

Conviction for possessing intoxicating liquor for purposes of sale; punishment, two years in the penitentiary.

The record contains four bills of exception, which will be noticed in reverse order.

The state's attorney told the jury they should convict appellant because he had not explained his possession of a jar of whisky within the meaning of the prima facie evidence rule as set out in the court's charge. He insisted that appellant had merely denied that he possessed any intoxicating liquor whatever. The argument was objected to as prejudicial because of the fact that appellant could not explain possession of a kind of liquor which he denied having. We see no merit in appellant's contention. He did attempt to explain his possession of a bottle of liquid; his explanation being that the liquid was not whisky but floor oil. In his charge the court told the jury that, if they believed that the liquid had by appellant at the time in question was floor oil, or if they had a reasonable doubt thereof, they should acquit. The state's attorney has a right to assume for the purpose of argument that the state witnesses are telling the truth, in which event appellant was found in possession of a half-gallon jar of whisky. Evidently the state's attorney was arguing to the jury that appellant's claim that the jar contained floor oil was not any such explanation as should result in his acquittal.

By another bill of exceptions complaint is made that the trial court erred in admitting testimony from the officers to the effect that, after appellant's arrest, they followed appellant's tracks around a building diagonally across the street from appellant's store onto the back of said building, and that just inside the building and behind the door they found three half-gallon jars full of whisky. We regard this as pertinent testimony bearing upon the issue as to whether the liquid in possession of appellant when seen by the officers was in fact whisky. The officers testified that appellant left his store with a paper sack folded or doubled up in his hand, crossed the street diagonally, and went behind a vacant building; that in about two minutes he reappeared with something heavy in the sack, which sack he was holding by the top; that, as he crossed the street toward his store, they holloed at him and he broke and ran. One of the officers ran after appellant, who, according to the officer's testimony, made a swing with the paper sack at a metal gasoline barrel sitting on the north edge of appellant's back porch. The officer said when appellant made this swing the bottom of the paper sack gave way and the half-gallon jar full of liquid fell to the floor. He said appellant picked it up and broke it on the top of the gasoline barrel. Both he and the other officer examined the liquid that was on top of the gasoline barrel and gave testimony that it was whisky. Appellant said he went after and got floor oil on his trip to the rear of the vacant building referred to. Appellant's wife said she asked him to go and get floor oil on said occasion. It thus became a sharply contested issue as to whether he got floor oil or whisky. The officers testified that they followed appellant's tracks to the door of said vacant building, and just inside same they found these half-gallon jars of whisky. The testimony was clearly admissible. The jar brought by appellant from behind said building was a half-gallon jar.

By two bills of exception appellant complained of the admission of similar testimony given by the two officers as to what they saw and found by an examination of the liquid on the top of the gasoline barrel on his back porch. The objection is stated thus in each bill: "The defendant objected to that part of said testimony which states that there was whiskey in the rim of the gas barrel on the defendant's back porch and which in any manner referred to the contents of said broken jar as having been whiskey." The ground of the objection was that the officers had no search warrant, and no authority of law to be where they were or to do what they did on the occasion in question. Appellant has filed an ingenious brief, arguing at length the inadmissibility of this testimony. We find ourselves entirely unable to agree to the positions taken.

Appellant's building had two rooms, in the front of which he had a store and in the rear room a residence; there being a porch on each end of said building. The building fronted west on a street. Officers watching the place saw appellant go to and fro between his store and cars which would drive up in front. They then observed him crossing the street in a northwesterly direction carrying a paper sack, as above set forth in considering another point. When the officers called to appellant, he ran with something in a paper sack, Officer Cummings following him. There was no inclosure around the building, and no showing that appellant owned or controlled any land other than that...