Hubbard v. State

• Decision Date: 18 April 1923
• Docket Number: (No. 7528.)
• Citation: 251 S.W. 1054
• Parties: HUBBARD v. STATE.
• Court: Texas Court of Criminal Appeals

Page 1054

251 S.W. 1054

HUBBARD v. STATE.

(No. 7528.)

Court of Criminal Appeals of Texas.

April 18, 1923.

Rehearing Denied May 30, 1923.

Appeal from District Court, Eastland County; E. A. Hill, Judge.

Jimmie Hubbard was convicted of possessing intoxicating liquor for sale, and he appeals. Affirmed.

D. G. Hunt, of Eastland, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Eastland county of possessing intoxicating liquor for purposes of sale, and his punishment fixed at five years in the penitentiary.

In the usual form appellant is charged with possession for purposes of sale of spirituous, vinous, and malt liquors capable of producing intoxication, in Eastland county, Tex.

Two raids were made on a house situated in the edge of the town of Eastland, said house being on what was known as the dumping ground. On the occasion of the first raid a number of bottles of whisky were found. The house was a small one-room affair, and a woman by the name of Pearl Rutledge was on the premises on the occasion of said first raid. She declined to state who had charge of the premises, but later admitted that same belonged to appellant, who on said occasion made his own appearance and affirmed that the place was his. According to the testimony of a witness some days later, because of information that liquor was being sold at said house, another raid was made by the officers, this date being about July 25, 1922. When the officers reached the house Pearl Rutledge was seen to pour something from a bottle through the floor, some of which was caught in his hand by one of the officers, and was said by him to be whisky. About a gallon and a half of whisky was found in a large bottle or container in a hole dug under the floor of a toilet situated near by. No evidence was introduced on behalf of appellant.

Complaint is made of the argument of the county attorney in stating that if the house testified about did not belong to appellant, why did he not have witnesses present to prove that fact. This was excepted to, and a charge asked in substance stating that the state was required to prove appellant's guilt, and that he was not called upon to offer any evidence. It is not made to appear by the bill of exceptions that Pearl Rutledge was in any way disqualified from giving testimony as to who had charge or control of said premises, nor is there aught in said bill showing the fact that there were no other persons who could be produced as witnesses to testify on this point. We do not regard the argument as one whose necessary effect was a reference to appellant's failure to testify. We think the language of the argument must be held to refer to the ownership of said house only in the sense of control, and such possession as is necessary to be shown in making out a case of guilt against one who has in his possession liquor upon the premises in question.

The allegation as to the date of the offense charged was July 25, 1922. Appellant objected to the testimony as to what was found on the premises, and what took place, and what was said at the first raid, on the ground that it showed other and extraneous offenses occurring at a different time from that charged in the instant indictment. We might dispose of this matter by saying that the state is not bound by the date laid in the indictment, and, it being charged only in general terms that appellant possessed intoxicating liquor for the purpose of sale, and, further, that proof of what was found on the occasion of the first raid, and what was then said and done by appellant, supported the charge laid in the indictment, we would be unable to say that the testimony as to what was said, done, and found on the first raid was not the testimony on which the state chiefly relied for a conviction herein.

However, we further state that the testimony as to what was found on the first raid was admissible as supporting the state's contention that the liquor had on the occasion of July 25th was so possessed for purposes of sale, no matter whether the state selected the first or the last occasion as that upon which it would ask conviction. The finding of a small quantity of liquor on one occasion might leave room for doubt as to whether it was had for purposes of sale, while the finding of a larger quantity might shed more light on the question; likewise, the finding of different quantities at times near together would yet more strongly support the hypothesis of guilt of said charge. This would especially be true in view of testimony of the finding of numerous bottles and containers scattered around the premises. On the first raid Pearl Rutledge, as well as appellant, was at the house, and appellant stated that it was his. As we view the record, the state might rely upon the testimony of the facts found upon either the first or second raid to secure its conviction.

As the officers approached the house the second time Pearl Rutledge poured out the contents of a bottle. Objection appears in the record to testimony of that fact. The ground of this objection seems to rest upon the proposition that appellant, not being present, could not be bound by the acts of said woman. The premises had been claimed by appellant, and the burden was upon the state to show the presence there of whisky. That the woman in question was pouring whisky out of a bottle would not render testimony of her act inadmissible. Pouring out the whisky was no crime. The state did not seek to bind appellant by her act in pouring the whisky out. Whether the whisky poured out was found by the officers in the bottle or whether they found it as it ran through the floor, would seem to make no difference in the admissibility of testimony of such finding.

Proof that on Sunday before the raid appellant sold beer at said place, which was not shown to be intoxicating could not injure appellant and would have weight as reflecting the fact that appellant was keeping said house as a place for business and at which he personally was selling goods, wares, and merchandise.

The record contains what purports to be an exception to the court's charge, but same is marked refused by the learned trial court, and there is no bill of exceptions showing any further proceeding in reference thereto. We cannot consider the purported exception to the charge in this condition....