Appellant was charged by information with possessing intoxicating liquors in a container to which was not affixed a stamp showing the payment of taxes due thereon to the State of Texas. Upon his conviction he was awarded a penalty of sixty days' confinement in the county jail and a fine of $100.00.
The facts briefly show that armed with a search warrant the sheriff and his deputies approached the home of appellant and his wife, and found the screen doors latched, and saw through the door appellant's wife pouring some liquid out of two fruit jars into an ice box that contained water and lysol. These fruit jars contained whisky, and had no stamp thereon showing the payment of any tax to the State.
It was proven that such liquid as was being poured out of these jars was whisky, and that the containers were unstamped. The question that gives us concern, however, is the connection of appellant with the possession of such whisky. The officers testified upon cross-examination that appellant was not at the house at the time of the search, and that he did not come there while they remained at such house. Jimmie Latham, the constable, testified:
"Mr. Poston was not there. I didn't see him anywhere around there. I had not seen him there before I went to the house. I don't know how long it had been since the last time he was at the house. I figure we stayed around there about thirty minutes. During the thirty minutes we stayed there he didn't come to the house. We all left, and I don't know when he was ever there after we left. I never saw him having anything to do with either one of those fruit jars. I don't know that he ever saw them in his life. I don't know that he ever touched them in his life. The only *Page 319 person I ever saw have anything to do with either one of those fruit jars was Mrs. A. O. Poston. I didn't see Mrs. A. O. Poston nor her husband acting together in any way with those fruit jars. I had never seen them together at any time or place with those fruit jars."
Roy Hays, the deputy constable, testified: "This place I went to was this man's home. The defendant was not there. I don't know when he was last there. I don't know how long he had been gone. We stayed there about fifteen minutes. I don't think we were there longer than that. I think fifteen minutes would catch it. The defendant didn't come to his home while we were there, I don't know when he next came there. I didn't see him have anything to do with either one of those bottles or jars I testified about. I don't know that he ever in his life touched either one of them. The only person I saw touch either one of them was his wife and I didn't make any complaint against her."
There was also testimony introduced by the State that this house was the home of A. O. Poston, and that he had been seen around there a few days before this search.
There is no testimony in this record, other than the above, that connects this appellant in any way with the possession of this untaxed liquor. In fact, the testimony seems to connect another, his wife, with such possession, and under the criminal laws of this State they are separate and distinct personages, neither criminally responsible for the acts of the other. We do not think these facts are sufficient to show that A. O. Poston was in possession of this unstamped liquor, and this judgment will therefore be reversed and remanded.