We think it necessary to advert to only three matters urged by appellant in his motion for rehearing.
As throwing light upon the purpose for which appellant was in possession of the whiskey found on his premises the State proved that a still, barrels, mash, etc., were found on another place which appellant seems to have had under his control at the time. We stated in our opinion that this still was found near the home where appellant was living. This was a mistake. The still and other paraphernalia were found in a small house about forty feet from a rent house on the farm under appellant's control, but distant about a mile and a half from his residence. In paragraph nine of his main charge the court undertook to limit the effect of the testimony as to finding the still on these other premises, by telling the jury if they believed the testimony of the witnesses relative thereto shed any light on or showed any connection with the offense for which the defendant was on trial they might consider said testimony and give it such weight and credence as the jury deemed the same entitled to receive. Appellant excepted to said paragraph nine of the charge because it failed to instruct the jury that before they could consider said testimony for any purpose they must believe beyond a reasonable doubt that defendant was in possession of or operating said still and equipment. This exception seems to be supported by Lankford v. State, 93 Texas Criminal Reports, 442, 248 S.W. 389, *Page 272 and the authorities therein cited. It would raise a serious question were it not for appellant's special charge number eleven, which reads as follows:
"You are instructed as a part of the law in this case which you will consider along with the court's main charge, (a) that if you believe from the evidence that the officers of Wise county found a still and barrel of mash on premises other than on those on which the defendant resided at the time of the alleged commission of the offense for which the defendant is now under trial, you cannot consider same for any purpose, and same is hereby withdrawn from you. (b) And in the event the Court refuses to give this charge, then defendant requests that he give in charge to the jury paragraph nine of his main charge."
This special charge is antagonistic to the exception urged against paragraph nine of the main charge. In the special charge appellant specifically tells the court if he does not withdraw from the consideration of the jury the evidence relative to finding the still and mash then he desired paragraph nine of the main charge to be given. Under this state of the record we can not hold the court to have been in error in refusing to comply with the exception presented to said paragraph nine. He committed no error in declining to withdraw the evidence.
As further throwing light upon the purpose for which appellant possessed the whiskey in question, the state proved that a short time before the officers reached the house appellant had sold some whiskey to one Layton whom they met as they were going to appellant's premises. Evidence was admitted as to what was found in Layton's car and to the circumstances incident to the search of the car by the officers. Complaint is made of the manner in which the court limited the purpose for which the testimony about stopping Layton's car and finding whiskey therein might be considered by the jury. This raises no serious question when taken in connection with the charge immediately following in which the jury were told they must believe from the evidence beyond a reasonable doubt that appellant sold whiskey to Layton on the night in question before they could consider that circumstances as having any bearing upon the case then upon trial. The search of the car by the officers was only incident to the sale of the whiskey to Layton. The court properly limited the testimony upon the vital point, to-wit: whether appellant sold whiskey to Layton.
Appellant renews his contention that the court should have charged on circumstantial evidence because John Terry and his wife were also living in the same house in which appellant and his family resided, claiming that no presumption would arise that the whiskey in the house was in the possession of appellant any more than in the possession of John Terry. As supporting this contention appellant *Page 273 relies on Lehman v. State, Texas Criminal Reports 174, and Mathis v. State, 272 S.W. 204. Unless there be evidence in the record taking the present case out of the principle announced in those referred to it would appear that appellant's contention is sound. There is some conflict in the testimony as to the quantity of whisky found in appellant's residence, but the testimony of the sheriff is to the effect that they found in the house more than a quart. The wife of appellant testified that John Terry and his wife had occupied the house with witness and her husband for about two years, living there as members of the family. She further testified that on the evening before the officers found the whiskey a negro had brought a jar about half full to the house and told witness to give it to her husband (appellant); that she had set it in the ice box where it was when the officers came, and that her daughter took it out of the ice box and hid it in the oven of the stove. Witness further testified that she and her husband had possession and control of the place on which they lived at the time of the search and arrest. Further on in her testimony she says that when the negro brought the whiskey to the house her husband would not drink it and set it in the ice box; that when the officers came her daughter asked if that whiskey was still in the ice box, and upon being told that it was said she was going to hide it, and placed it in the stove. Considering all of the testimony we believe the case is not one of circumstantial evidence, and the court committed no error in declining to charge upon the subject.
The motion for rehearing is overruled.
Overruled.