The State, by its county attorney, has filed an able and elaborate motion for rehearing. In it, it is seriously contended that we erred in the disposition of this cause on original submission because we held the evidence insufficient to sustain appellant's conviction.
The contention is here urged that our opinion is in direct conflict with the decision of this Court in the case of Watson v. State, 24 S.W.2d 830.
We think this case is distinguishable on the facts from the one mentioned. In the Watson case, there was no evidence that Mrs. Watson had any connection with the unlawful possession of *Page 320 the whisky. Of course, she was present in the home where the liquor was found — where she had a right to be and where her duties required her to be. But there was no showing that she had any connection with the whisky.
In the case under discussion, the appellant was not at home. It was not shown when he had last been there or how long after the raid, if ever, he returned. Mrs. Poston, the wife of the appellant, was alone present in the home when the officers arrived. She poured the whisky out of the fruit jar into an ice box and undertook to destroy the evidence of the possession of untaxed liquor. Her act tended to show that she was in possession of the liquor by exercising acts of ownership and control over it. To hold that her husband would be subject to prosecution for the possession of untaxed liquor under these facts without any evidence that he aided or encouraged her in the commission of the offense, would amount to an abolition of the rule requiring the evidence to show the accused's guilt beyond a reasonable doubt.
Believing that the case was properly disposed of on original submission, the State's motion for a rehearing will be overruled.
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.