Walden v. State

• Decision Date: 06 May 1925
• Docket Number: (No. 8776.)
• Citation: 272 S.W. 139
• Parties: WALDEN v. STATE.
• Court: Texas Court of Criminal Appeals

272 S.W. 139

WALDEN v. STATE.

(No. 8776.)

Court of Criminal Appeals of Texas.

May 6, 1925.

Appeal from District Court, Howard County; W. P. Leslie, Judge.

Lem Walden was convicted of unlawfully possessing intoxicating liquor for the purpose of sale, and he appeals. Reversed and remanded.

Jno. B. Littler, of Big Springs, and B. W. Baker, of Carthage, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

MORROW, P. J.

The offense is the unlawful possession of intoxicating liquor for the purpose of sale; punishment fixed at confinement in the penitentiary for a period of one year.

The state's testimony is to the effect that the appellant and two others were seen in an automobile in which there was found a fruit jar containing a half gallon of whisky and some other containers, which the circumstances revealed had contained whisky.

The appellant's explanation of the transaction is in substance this: Without any whisky in his car, he stopped it on the street after paying a visit to his aunt. It was near a restaurant and a garage. Leaving his car, he went into Meyers' restaurant and had a conversation with a relative. Meyers was drunk, and his wife asked the appellant to take him out. Appellant and Meyers went to the car. Upon reaching it, another man appeared and asked to ride with them out to a farm about 3 miles distant. The man said he had a bundle that he wanted to take with him. Appellant consented that he should ride. The man went away, and upon his return had the bundle with him, and asked Meyers if he drank. Meyers replied that he did. The jar was then produced, and a drink taken from it by each member of the party. Appellant got out of the car to go on an errand. Upon his return to the car, he found the officers in possession of it. He disclaimed any other connection with the whisky or the ownership of it.

In its charge, the court instructed the jury thus:

"If you find and believe from the evidence in this case, beyond a reasonable doubt, that on or about December 9, 1923, in Howard county, Tex., the defendant, Lem Walden, knowingly had in his possession more than one quart of whisky, then you will find him guilty."

The court also instructed the jury that, if the whisky in question was placed in the car of the appellant by another, and the appellant had no interest in it, or if upon that subject they had a reasonable doubt, they should acquit him.

There is no phase of the charge which submitted to the jury the question as to whether the whisky was possessed for the purpose of sale, but the learned trial judge proceeded upon the theory that the possession of more than a quart of whisky was conclusive proof of guilt. The indictment in the present case properly charged the offense, namely, the "unlawful possession of intoxicating liquor for the purpose of sale," but it is also necessary that the purpose for which it is possessed be submitted to the jury.

From Petit's Case, 90 Tex. Cr. R. 336, 235 S. W. 579, we quote:

"There can be no question but that an indictment for the offense as now defined, must charge that such possession `was for the purpose of sale,' and that the question of the purpose of such possession must be submitted to the jury in the charge of the court."

We also quote from Veasey's Case, 97 Tex. Cr. R. 299, 260 S. W. 1055, the following:

"The learned trial judge apparently misapprehended the phase of the statute under which the prosecution is made. The offense denounced is `the possession of intoxicating liquor for the purpose of sale.' The burden rested upon the state to prove, not only the possession, but that the possession was for the purpose of sale. The appellant might have had liquor for use as beverage, but such possession would not have been within the provision of the state statute."

In the present case the learned trial...