(dissenting)
Carl Edward King, the husband, and Peggy June King, the wife—appellant, here—were jointly indicted for the offense of possessing marihuana. A severance was awarded the husband and the wife was placed upon trial. Her conviction resulted, with punishment assessed at seven years in the penitentiary.
Members of the police department of the city of Houston obtained a seach warrant to search apartment No. 2 of a building located at 2120 Turner Drive in the said city, which apartment was alleged to be the private residence of “Karl E. King.”
Armed with the search warrant, the officers went to the apartment on the night of January 9, 1959. They entered, and found no one at home. A search was made of the apartment.
Two “cigarette butts” which were shown to contain marihuana were found on a chair by the bed. “Some green plant substance” was also on the chair. That substance, together with the cigarette stubs, was sealed in a vial and placed in an envelope and later identified as containing marihuana.
A white suitcase was found in the room, containing women’s apparel, cosmetics, and letters and Christmas cards addressed to appellant “at a route box in Sealy, Texas.” The clothing and contents were removed from the suitcase and what one of the searching officers described as “Tobacco or some plant substance” was noticed in the bottom of the suitcase. A piece of paper was spread and the suitcase was turned upside down and the plant particles emptied onto the paper.
These particles were folded into the paper and the paper was taped and initialed and, along with the vial containing the cigarette stubs and particles from the chair, delivered to the chemist or toxicologist with the Houston police department.
*38The chemist testified that from a “microscopic examination” of the substance taken from the suitcase it “appeared to be marijuana,” and that it amounted to about one grain.
The chemist also testified that the substance taken from the chair and that in the cigarette butts was marihuana and amounted to about two grains.
A thorough search of the apartment revealed no other narcotic or marihuana.
The officers waited in the apartment for almost two hours before an automobile was driven into the driveway. Appellant was driving, and her husband, Carl King, was in the car with her. Upon seeing the officers, appellant attempted to back the car out of the driveway, whereupon one of the officers proceeded to shoot into one of automobile tires.
The foregoing are the facts upon which this conviction rests.
Appellant offered no defensive testimony.
The sufficiency of the evidence to support the conviction is challenged. It is insisted that inasmuch as the apartment was under the control of the husband and the search warrant was issued to search his home the presumption prevails that the apartment and its contents were in the possession of the husband.
This court has so held the law to be. Watson v. State, 114 Tex. Cr. R. 117, 24 S. W. 2d 830, 23 Tex. Jur., Sec. 87, p. 107; Erisman Manual of Reversible Errors, Sec. 52, p. 39.
Of course that presumption may be overcome by proof showing that the wife was in the active possession, care, and control of the residence and its contents. Such is the holding in the case of Gentry v. State, 158 Tex. Cr. R. 112, 253 S. W. 2d 862, where the wife in the presence of the officers was attempting to destroy the contraband—which, in that case was whisky and gin.
No similar fact situation is here presented. The appellant was never seen by anyone, at any time, in or around the apartment prior to the time she drove into the driveway with her husband. If she ever resided there with him there is no evidence of such fact and no one so testified. That she resided at *39another and different place—that is, Sealy, Texas, is shown by the fact that letters and Christmas cards were addressed to her there, during the holidays just prior to January 9, 1959.
The presumption not having been overcome that the marihuana found in the apartment was in the possession of appellant’s husband, the evidence is thereby rendered insufficient to support the conviction.
It is suggested, however, that the conviction can be sustained upon proof of the finding of one grain of marihuana in the suitcase containing feminine personal effects and wearing apparel and letters addressed to appellant.
Here, again, the state is confronted by the absence of any evidence that the appellant brought the suitcase to the apartment or that she owned or exercised any control over it at any time.
Though ladies’ wearing apparel and letters addressed to appellant were in the suitcase, yet such by no means shows that appellant had possession thereof, especially in view of the absence of any evidence that she was ever at any time in the apartment or that the wearing apparel was hers or of such size that she could wear it.
I submit that the facts do not warrant the conclusion that appellant was an occupant of or in possession of the apartment and its contents.
The judgement should be reversed and the cause remanded.
I dissent to the affirmance of this case.