Miller v. State, 19305.

• Decision Date: 12 January 1938
• Docket Number: No. 19305.,19305.
• Citation: 114 S.W.2d 244
• Parties: MILLER v. STATE.
• Court: Texas Court of Criminal Appeals

114 S.W.2d 244

MILLER v. STATE.

No. 19305.

Court of Criminal Appeals of Texas.

January 12, 1938.

State's Rehearing Denied March 9, 1938.

Appeal from San Saba County Court; J. B. Harrell, Judge.

R. F. Miller was convicted of having unlawfully possessed intoxicating liquor for purpose of sale, and he appeals.

Reversed and remanded.

J. Mitch Johnson, of San Saba, for appellant.

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

HAWKINS, Judge.

Appellant was charged by complaint and information with having on or about March 8, 1937, unlawfully possessed for the purpose of sale intoxicating liquor, viz., one quart and six pints, and one part of a pint of whisky in San Saba county, it being alleged by proper averments that the sale of intoxicating liquor had been prohibited in said county by an election held therein in March, 1914. Upon conviction a fine of $150 was assessed against appellant.

The case must be reversed because of a bad description of the property sought to be searched, but other questions are raised which we think it proper to consider and dispose of because other cases are pending presenting the same points.

The State introduced the orders of the commissioners' court ordering the election in San Saba county in 1914, the petition upon which said order was made, the order declaring the result, and the certificate of the then county judge as to the publications of said order. Appellant brings forward bills of exception complaining of all the evidence mentioned. The objection in each instance was that there "was a variance between the allegations made in said information and complaint and the proof offered, in that the pleadings of the State do not contain sufficient allegations to support the records introduced by the State." We discover no error of the court in admitting the orders of the commissioners' court, and the certificate of the then county judge under the averments in the complaint and information. We are not advised what claimed "variance" existed unless it be based on the fact that the election mentioned prohibited the sale of intoxicating liquor in the county and the charge against appellant was for possessing intoxicating liquor for the purpose of sale. If this be the variance complained of, the recent case of Price v. State, Tex.Cr.App., 109 S.W.2d 198, and those cited in that opinion, are against appellant's contention.

Officers operating under a search warrant found in appellant's private residence the whisky described in the complaint and information, it being more than a quart. The law in effect when the offense is claimed to have occurred made the possession of more than a quart of intoxicating liquor prima facie evidence that it was possessed for the purpose of sale. The whisky here was found in appellant's possession. Appellant's point that the court should have charged on circumstantial evidence is decided against him in Terry v. State, 101 Tex.Cr.R. 267, 275 S.W. 837; Buchanan v. State, 107 Tex.Cr.R. 559, 298 S.W. 569; Fromm v. State, 118 Tex.Cr.R. 265, 39 S. W.2d 67.

Appellant filed written objections to the charge for omitting a definition of possession, and presented a special charge containing such definition. The facts in many cases raise an issue which calls for such instruction in order that the jury may understand the law as it relates to the facts before them, and an omission to give such instruction under the circumstances mentioned would be error. See Wells v. State, 125 Tex.Cr.R. 201, 67 S.W.2d 305; Andrews v. State, 106 Tex.Cr.R. 357, 292 S.W. 880; English v. State, 119 Tex.Cr.R. 202, 46 S.W.2d 697. Where the undisputed evidence shows—as it does here—that accused was in possession of the whisky, an omission from the charge of the definition of possession cannot be held erroneous. In Greer v. State, 101 Tex.Cr.R. 44, 273 S.W. 861, 862, accused was upon trial charged with selling intoxicating liquor. He complained that the court did not define the term "sale." We said: "We find nothing in appellant's complaint directed at the failure of the court to define the term `sale.' There was no possibility of confusion in the minds of the jury on the subject. It was not claimed that the transaction might be a gift or anything else save and except a sale." The same reasoning applies here on the question of possession.

Appellant complained that the search warrant contained no description of the property to be searched. That such description must be in the warrant is not debatable. Our Constitution, statutes, and decisions all require it. The affidavit for the search warrant did contain a description of the property. On one sheet of paper appeared either the original affidavit or a copy thereof, and immediately below it appeared the warrant which referred to the "above complaint" and to the "foregoing affidavit," which in express terms is "made a part" of the warrant. This being true, we believe the description in the affidavit became a part of the warrant, and would be sufficient had the description in the affidavit not been subject to...