Tucker v. State, 32181

• Decision Date: 12 October 1960
• Docket Number: No. 32181,32181
• Citation: 170 Tex.Crim. 113,339 S.W.2d 64
• Parties: Estress TUCKER, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 64

339 S.W.2d 64

170 Tex.Crim. 113

Estress TUCKER, Appellant, v. STATE of Texas, Appellee.

No. 32181.

Court of Criminal Appeals of Texas.

Oct. 12, 1960.

[170 TEXCRIM 113] Paul W. Anderson, Marshall, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

The conviction is for the unlawful possession of wine for the purpose of sale in a dry area with two prior convictions for offenses of like character alleged for the purpose of enhancement; the punishment, 4 years in jail and a fine of $4,000.

[170 TEXCRIM 114] The disposition hereof makes a summary of the facts unnecessary.

Formal Bill of Exception No. 2 certifies that on the trial of the cause the State introduced into evidence before the jury the affidavit for the search warrant over the timely objection of the appellant.

The affidavit was clearly hearsay and, under the record presented, its admission in evidence was error and calls for a reversal of the conviction. 37-B Tex.Jur. 489, sec. 36; 3 Branch's Ann.P.C.2d 106, sec. 1335; Hall v. State, 136 Tex.Cr.R. 320, 125 S.W.2d 293; Byars v. State, 154 Tex.Cr.R. 515, 229 S.W.2d 169; Hebert v. State, 157 Tex.Cr.R. 504, 249 S.W.2d 925; McGowan v. State, 158 Tex.Cr.R. 319, 255 S.W.2d 512; Hicks v. State, Tex.Cr.App., 318 S.W.2d 652; and Zorn v. State, Tex.Cr.App., 321 S.W.2d 90.

The record further shows that State's counsel was permitted, over appellant's objection, to question a witness for the appellant with reference to certain forfeiture proceedings filed against appellant's two automobiles. Such an inquiry was irrelevant to any issue in the case and upon another trial should not be permitted.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

DAVIDSON, Judge.

I concur in the reversal of this case, but insist that the evidence should be held to be insufficient to show appellant's guilt.

The sufficiency of the evidence to support the conviction is always one of the paramount questions in the appeal of a criminal case. Unless and until the state has proven the guilt of the accused there is little occasion or reason for this court to determine procedural errors in the trial of the case.

The evidence in this case is wholly insufficient, in law, to show the guilt of the appellant. This court ought to say so, and reverse the conviction for that reason.

Here are the facts--and all the facts--upon which this conviction rests: A liquor control agent, a deputy sheriff, and a constable searched, under and by authority of a search warrant, a [170 TEXCRIM 115] five-room frame rooming house situated at '804 Cook in the city limits of Marshall, Texas.'

During the years 1954 to 1958 the house was assessed for taxes in the names of Callie Williams and Jewel White. For the year 1959, the tax year preceding the alleged offense on January 9, 1960, the property was assessed for tax purposes in the name of Jewel White. Callie Williams arranged for and made the required deposit for water service and for electric power to the house. The deposit for the gas service was made by Jewel Henderson.

Callie Williams and Jewel Henderson resided in the house, occupying, jointly, one of the three bedrooms. Callie Williams was the aunt of appellant's wife and Jewel Henderson was the mother of appellant's wife. Wendell Holley and his wife, who was the sister of appellant's wife, occupied a bedroom in the front of the house.

Appellant's only connection with the ownership or possession of the house was that he and his wife occupied one of the bedrooms and a mailbox bearing his name was on the house and a telephone was listed in his name.

There was a porch across the front of the house and another porch on the rear. The only bathroom in the house adjoined the back porch.

The searching officers found where a hole had been cut in the ceiling of the front porch and through that opening they found a quantity of whisky and wine stored in the attic or ceiling. Also a hole had been cut in the ceiling of the back porch and, by reaching a hand through that opening, a quantity of whisky and wine was found in the attic over the bathroom.

Of the five persons shown to be occupying the house, only the wife of the appellant testified as a witness in the case. She denied any knowledge of there being in the house the intoxicants found by the officers.

As relevant to the question of intent with which the intoxicants were possessed, the state introduced evidence to the effect that appellant had been guilty of selling whisky for which offense he was neither charged, tried, nor convicted. Also, for the purpose of enhancing the punishment as an habitual, the state [170 TEXCRIM 116] proved against appellant two prior convictions for violations of the state liquor laws.

Of course, upon the merits of the case proof of the prior convictions was not admissible for any purpose. McCoy v. State, 159 Tex.Cr.R. 315, 263 S.W.2d 782; Gaines v. State, 155 Tex.Cr.R. 79, 231 S.W.2d 429; Burris v. State, Tex.Cr.App., 327 S.W.2d 756.

Also, proof of the other violation of the liquor laws for which appellant had been neither tried nor convicted could hardly be material upon the issue of intent with which the liquors were possessed until the state proved, here, his possession of the liquors found by the officers. Until the state proved that appellant was in possession of the liquors, there was no issue of intent of possession.

It must be remembered that in possession-of-liquor cases the state has, first, the burden of proving possession by the accused of intoxicating liquor. Until the state has met and satisfied that burden there is no issue of intent. One could hardly intend to sell liquor which he neither owns nor possesses.

Here, the state wholly and utterly failed to show by legal and competent evidence that the liquor found by the officers was in the actual care, control, and management of the appellant. This the state was required to establish.

This was a case of circumstantial evidence. The trial court so instructed the jury.

One of the cardinal rules touching the sufficiency of that type of testimony to authorize a conviction is that the circumstances in order to be sufficient must, among other things, exclude every other reasonable hypothesis save and except the guilt of the accused, and when other...