The conviction is for the offense of possessing whisky in a dry area for the purpose of sale. The punishment assessed is a fine of $500.00.
The record shows that the Sheriff of Young County, accompanied by other peace officers, went to appellant's hotel, *Page 31 where she made her home, and by virtue of a search warrant, searched her premises. As a result of the search, they found two half pints of whisky in a dresser drawer and two half pints in a closet of appellant's bed room. The seal on one of the bottles was broken and part of the contents thereof was missing. In another room across the hall the officers found two half pints of whisky between the mattresses, and they found five half pints of gin in a water meter at the corner of the house. One of the officers testified that while at the premises in question, he saw appellant take two pint bottles from her bosom and put them in a closet.
It was shown that appellant exercised dominion over the place and was in control thereof.
Appellant did not testify or offer any affirmative defense. She proved, however, that she was married and that her husband lived with her and that he was present at the time the officers made the search in question.
Appellant has brought forward ten bills of exception which relate to the introduction of evidence and objections to the court's charge, and to his refusal to give special requested charges.
By Bills of Exception Nos. 1, 5, 6, and 7, appellant complains of the introduction in evidence of the whisky found as a result of the search under and by virtue of a search warrant. Appellant's objection thereto was on the ground that it was not averred in the affidavit for the search warrant that intoxicating liquors were possessed unlawfully and were being sold contrary to law. In the affidavit, after a definite description of the premises and the location thereof, we find the following language:
" * * * and being the premises of Mrs. F. B. Douglas, who occupies the same, is a place where alcoholic beverages described in the foregoing affidavit are unlawfully sold, kept, stored, * * * in violation of the provisions of the Texas Liquor Control Act, etc."
This, to our mind, clearly shows that appellant's position is untenable. See Cropper v. State, 111 S.W.2d 709.
By Bill of Exception No. 2 appellant complains of the introduction in evidence of the whisky found as a result of the *Page 32 search and seizure by the officers. Her contention is that the search was unreasonable because the statements in the affidavit for the search warrant were insufficient to constitute probable cause. The statements therein are to the effect that "affiants were told by several good and reputable citizens of Young County, Texas, that they had recently seen people go to said place sober and come away therefrom with intoxicating liquor and in a state of intoxication." This, in our opinion, shows probable cause for the issuance of the search warrant. See Denzlinger v. State, 116 Tex.Crim. R..
By Bill No. 3 appellant complains of the testimony given by the officers that they found five half pints of gin in a water meter near the corner of the house. She objected to this testimony on the ground that the water meter was the property of and in possession of the City of Olney. The court sustained the objection and instructed the jury not to consider it. Appellant then requested that the court declare a mistrial, which was refused. We see no such error reflected in the bill as would authorize or require a reversal of the judgment. Therefore, we overrule her contention.
Bills of Exception Nos. 4, 8, 9, and 10 have been examined by us and found to be without merit.
Appellant also complains because the court declined to give her special requested charge to the following effect:
" * * * that unless you find and believe beyond a reasonable doubt that such whisky or liquor was not the property of or in possession of Gordon Kimbrell but was the property of and in possession of the defendant you cannot consider such evidence for any purpose against the defendant, etc."
This charge is obviously incorrect and no error was committed by the court in declining to submit the same to the jury. The court gave a very fair charge on the theory that if the whisky or the two half pints found by the officers belonged to appellant's husband or were in his possession or under his control, or if the jury had a reasonable doubt thereof, they should acquit her.
Finding no reversible error in the record, the judgment of the trial court is affirmed. *Page 33
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.