Appellant was tried and convicted in the District Court of Angelina County of the offense of unlawfully possessing intoxicating liquor for sale, and his punishment assessed at one year in the penitentiary.
The record discloses that appellant was a brakeman, and was also the owner and proprietor of a domino parlor and cold drink stand; that when he was engaged in the work of a brakeman on a railroad, the cold drink stand and domino parlor was run by a boy under his supervision; that his place of business was frequently occupied by many negroes; and that when appellant was not on his duty as a brakeman, he gave his attention to the supervision of his domino parlor and cold drink stand.
It also appears from the record that on the date of the alleged offense the officers raided appellant's place of business while he was present and in actual charge thereof, and found a gallon of whiskey in a handbag and eight soda water bottles full of whiskey mixed in a crate filled with other soda water bottles. The appellant denied any knowledge of said whiskey being on said premises and testified in his own behalf that he had never kept any for sale and knew nothing of same being there until it was seized by the officers at the time above mentioned.
The court in his general charge and in the usual form charged the jury relative to appellant's having in his possession more than a quart being prima facie evidence, and if they believed from the evidence beyond a reasonable doubt that he had same for sale, to convict him, and in the event of a reasonable doubt to return a verdict of not guilty; and upon the request of appellant charged the jury in addition thereto, that if the intoxicating liquor was placed in the appellant's place of business without his knowledge and consent by some other person other than his agents or representatives, to return a verdict of not guilty.
Appellant complains of the refusal of the court in refusing to give his special charges 1, 2, 5, and 6, based on the theory that unless the jury believed the whiskey in question belonged to the appellant, or that he or his agents had actually made sale of same or was negotiating for sale of same or intending to do so, that he should be acquitted. There is no merit in this contention. Under the law the appellant would be guilty of unlawfully possessing it for sale, regardless of whether it belonged to him, or he had sold any of it or negotiated to sell any of it, if he possessed it for the purposes of sale, and it does not depend upon ownership or the negotiation for sale, to constitute this offense.
Complaint is also urged to the action of the court in refusing *Page 110 to give special charges requested by the appellant on the issue of possessing said whiskey for sale. The court fully covered this phase of the case in his general charge and in special charge No. 4, given at the request of the appellant, and committed no error in refusing these additional charges on the same issue.
Complaint is made to the action of the court in permitting the jar and bottles in question to be placed in view of the jury during said trial. There is no error shown in this instance, as it fully appears from the record that all of said articles were identified by the state's witnesses and introduced in evidence before the jury. Agapito Rueda v. State, No. 9344, yet unpublished.
The appellant contends that this case should be reversed on the argument of the district attorney wherein he stated that on certain days, the record discloses the appellant did not give a strict account of his whereabouts, that he was out making sales of the intoxicating liquors in question, and to the effect that the appellant showed a "smart trick" and good business in having the whiskey in soda water bottles mixed with other bottles. The court instructed the jury not to consider the remarks of the district attorney that the appellant was out making other sales, and the other portion of the argument relative to the appellant having the whiskey and soda water bottles mixed was thoroughly warranted by the evidence in the case.
Complaint is made to the action of the court in permitting the district attorney to interrogate the defendant while on the stand with reference to being charged by indictment with other offenses involving liquor. The court qualifies this bill by setting out apparently the stenographic report on this issue, which does not show what answer the appellant made to said question, and further shows that the court instructed the jury not to consider same. As presented this bill shows no error.
Complaint is made to the refusal of the court to charge the jury on circumstantial evidence. The whiskey in question was found in the possession of the appellant, containing more than a quart, and his only defense was, and he so testified, that it was there in his place of business without his knowledge or consent. The court upon this phase of the case thoroughly covered the issues raised in his general charge and special charge 4 above mentioned, given at the appellant's request. We are of the opinion that under the facts of this case that there was no error committed in the refusal of the court to instruct the jury on the law of circumstantial evidence. Billing v. State, 271 S.W. 607.
After careful examination of the entire record we are of the *Page 111 opinion that the judgment of the trial court should be affirmed, and it is accordingly so ordered.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.