Conviction for possessing intoxicating liquor for purposes of sale; punishment, one year in the penitentiary.
Officers having a search warrant searched appellant's house and premises. The sheriff testified that he found a demijohn with about seven gallons of whisky in it sitting in the bathroom with the cork out and a syphon inserted; also in said bathroom were two cases of empty pink flasks. He further said that he found sixteen halfgallon jars filled with whisky, one gallon jar partly full of whisky, three pint flasks filled with *Page 256 the same liquor, also a quantity of corks, ten or fifteen pounds of paper bags, two funnels, two rubber syphons, a case of canned malt, and several empty kegs near the barn, each of which showed to have contained whisky. He testified that appellant was not at the house, but that his wife was. Another state witness said the two cases of whisky flasks, the paper sacks, funnels, etc., were found in a different room from the one in which the demijohn of whisky was.
Appellant did not testify, but introduced witnesses attempting to show that the whisky was in the possession of a boy who roomed at appellant's place. This issue was pertinently submitted to the jury who were told that if they believed the whisky found by the officers was in the possession of Covington, or if they had a reasonable doubt thereof, they should acquit. The jury were also told that unless they believed beyond a reasonable doubt that the whisky found by the officers, if any was found, was possessed by appellant, they should acquit. Appellant's chief insistence is that the evidence is not sufficient to support the verdict of guilty. He cites several cases which we notice briefly.
Mathis v. State, 100 Tex.Crim. Rep., 272 S.W. 204. In this case the finding of some whisky buried under the dirt floor of a garage belonging to others, — but where appellant kept his car, — which garage was open at both ends and not kept locked; and it being also shown that in some nearby rooming house where appellant stayed other men also roomed, — these facts were not deemed sufficient to support the conviction.
Curry v. State, 102 Tex.Crim. Rep., 278 S.W. 855. In this case whisky was found in a cotton seed house. Three other men and two other adult persons lived in the residence with appellant, all apparently having equal rights and privileges to have and control personal property on the premises. Nothing pointed to appellant as the owner or possessor with more pertinence than to others. We held the evidence not enough to support the conviction.
Heeter v. State, 103 Tex.Crim. Rep., 281 S.W. 565. In the opinion on rehearing, the facts in this case were held sufficient, but close.
Battles v. State, 108 Tex.Crim. Rep., 1 S.W.2d 888. The evidence in this case failed to show that any intoxicating liquor was found on premises owned or controlled by appellant.
Bridwell v. State, 111 Tex.Crim. Rep.,15 S.W.2d 12. The facts in this case showed that a small quantity of liquor was found at the home of appellant, four pints being found in a ceder chest filled with women's clothes, and two pints being found under the door step; it appearing that beside women other men lived in the same house, one of whom was named in the affidavit for search warrant as engaged in the manufacture of liquor at said place, and it being not shown that appellant *Page 257 had been at said house for a month, or that he was in the community at any time while liquor was made or possessed on said place, the evidence was held insufficient.
Watson v. State, 114 Tex.Crim. Rep.,24 S.W.2d 830. This court held the evidence insufficient. The accused, a woman, was found alone at a house where a quantity of beer was located. She testified that it was made by her husband over her protest, and it was shown also that he was under indictment for making said liquor.
In the case before us it was shown that appellant operated a service station, and had at least two boys working for him, both of whom stayed at his house. Stewart, one of these boys, testified for the defense that the other boy, Covington, drove a car for appellant, and had only been staying at the house for about three weeks, and that on the morning of the day when the raid was made, Covington called him into the bathroom at appellant's house, opened the door of a closet and showed witness "a bunch of liquor" and said it was his. Stewart said there were two five-gallon jugs and some half gallon jars. Apparently this was all he saw, if he saw anything. He said Covington used the bathroom closet for keeping his clothes. He also testified that he, witness, used the bathroom all the time and had never seen the liquor before; that he slept at the house the night before, but that appellant did not. He testified that appellant slept at the service station most of the time, and that he did not tell appellant about the whisky.
Appellant's wife testified that the room of the Covington boy was across the hall from the bathroom, but having no closet in it Covington used the bathroom closet. She further testified that Covington told her the night before the raid that he had stored the whisky in the closet, that she told him to get it out, and he said he would as soon as he could. She said she did not tell appellant of the whisky, and, as far as she knew he did not know about it.
We need not call attention to the easily discerned differences which are most material, between this case and those cited by appellant above referred to.
In this case the only persons having access to appellant's house, aside from his family, which consisted of his wife and young children, were two boys, appellant's employees, ages unknown, subject to his direction and having no equality or parity of control over property on said premises. It might be asked where was appellant at breakfast time the morning of the day of the raid? Where was he during that morning? Where was he at the noon mealtime that day? How account for the syphon in the ten-gallon whisky container sitting on the floor of the bathroom "in plain view" as testified to by the sheriff? How account for the corks, the funnels, the cases of empty pint bottles, empty kegs smelling of whisky, etc.? There were grave discrepancies in the defensive testimony, *Page 258 aside from the general improbability that a boy, working for one supposed to be a good citizen, would take about twenty gallons of whisky in many containers, together with corks, funnels, cases of empty flasks, syphon, cases of canned malt, etc., to the house of his employer soon after beginning his service, and at once inform the wife of such employer of such fact. We think the jury not unwarranted in their conclusion, nor that the trial judge, who saw and heard the witnesses, abused his discretion in overruling the motion for new trial.
We find in the record no bills of exception complaining of any matter of procedure. Appellant asked five special charges, the correctness of whose refusal appears so manifest as not to call for any discussion.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.