In the original opinion delivered November 20, 1929, the judgment was affirmed on account of a defect in the record. None of the points upon which appellant relied for reversal were considered. In the opinion on rehearing delivered January 1, 1930, the case was for the first time considered on the alleged errors. While the present motion appears on its face as a *Page 131 second motion for rehearing, it is in fact a first, as it relates to the merits; hence it will be entertained.
Appellant requested the court to instruct the jury that they would not consider any evidence as to "liquor found in the lot or premises back of the premises of defendant." The motion now being considered urges that it was error to refuse said instruction on the assumption that the evidence shows without dispute that the cow lots where some of the liquor was found belonged to or were owned or controlled by the hotel, and that appellant did not control said lots. Of course, the appropriateness or otherwise of the requested instruction must turn upon the evidence. Harry Walker, one of the officers, testified:
"I know where there is a house situated on Mason Street in the town of Bowie, Montague County, being the first north of the Commercial Hotel. It is between the Burns Hotel and the Armory; the Burns Hotel is also known as the Commercial Hotel. The property between the Commercial Hotel and the Armory is occupied alone by Frank Ross; it is a rooming house. . . . I went to this house on or about the 29th day of September, 1928, and made a search. . . . When I went to the premises of Frank Ross I believe he was sitting on the front porch of the Commercial Hotel."
At this point the witness detailed about appellant unlocking the door of the rooming house and the search of it and what was found there and then continued with his testimony as follows:
"I made further search of the premises; I went out back of the premises and in the cow lot we found three half gallon jars in the cow lot; we found three one-half gallon jars of whisky and three soda pop bottles full in the cow lot. . . . That cow lot is directly back of Frank Ross' place; there is a little gate into this cow lot; there are two gates between his house and where I found the whisky."
Upon cross-examination the witness testified:
"I do not know who that lot belongs to out where I said I found some jars of whisky. I do not know whether it belongs to the Burns Hotel or the Armory or Mr. Ross."
Jack Will, another officer, testified as follows:
"I know the defendant, Frank Ross. I know where his place is situated between the Commercial Hotel and the Armory. . . . I know where there is a cow lot in back of Frank Ross' place. I have seen Frank Ross back there in this cow lot back of his premises. I *Page 132 have seen him back there lots of times. It would be nights when I have seen him back there."
On cross-examination the witness testified:
"There are two lots back there; one of them is immediately behind Mr. Ross' place and the other is behind the Commercial Hotel. Well, I do not think that Mr. Ross keeps a cow. There is a gate between the two lots. The Burns or Commercial Hotel does keep a cow. That lot or these two lots is occupied by the cow kept by the Burns or Commercial Hotel. I do not know whether that was Frank's cow that was kept in there. I think it was the cow belonging to the Commercial Hotel. . . . The cow lot that I saw was back of the rooming house.
At this point there was exhibited to the witness a map of that portion of the city of Bowie, which showed an alley running back of the hotel, the rooming house and the Armory, which alley, (as we gather from the testimony) shows on the map to occupy, in part at least, the territory claimed to have been covered by the lots in question. The witness after having been shown the map testified that regardless of the map there was no alley of any kind running in any direction back of Frank Ross' place.
The foregoing is all the evidence bearing upon the point now under consideration and we are of opinion in view of such testimony the trial court would not have been authorized to withdraw from the consideration of the jury by the special charge requested the fact of some whisky having been found in the cow lot. The court did tell the jury if they entertained a reasonable doubt whether the liquor testified to by the officers was possessed by someone other than appellant that they should acquit him. Other whisky having been found under the stairway in the rooming house appellant perhaps — if he had requested it — would have been entitled to a more specific charge regarding the whisky found in the lot to the effect that if the jury entertained a reasonable doubt as to whether that part of the whisky was in the possession of appellant the jury would not consider it for any purpose. There was no request for such special instruction.
Appellant insists that we misapprehended bill of exception number nine. The bill reveals that officer Walker testified that after the whisky was found in the closet under the stairway appellant said "that was all he had." Objection to what appellant said was urged because he was under arrest; the court overruled the objection. The prosecuting attorney then asked Walker the following question. *Page 133 "After Frank (appellant) said he did not have any more whisky was he asked to show his bedroom?" to which witness answered, "Yes," and said when they went to the bedroom appellant said he had a pint in there which he kept for his own use, and that witness found a pint of whisky in the dresser drawer. At this point the court excluded the statement that appellant had said "he did not have any more whisky," but declined to exclude appellant's statement that "he had a pint of liquor in the dresser drawer." With the record in this condition the prosecuting attorney in his argument said, "Defendant was asked if he had any more whisky and he said he had some in his bedroom for his own use." Appellant's counsel construed this argument to make use of the excluded testimony and objected to it on that ground; the court overruled the objection accompanying it with the statement that "counsel was mistaken that such testimony had not been excluded." It is apparent that the learned trial judge did not construe the argument as appellant's counsel does. It does not appear that the attorney said in his argument that appellant had told Walker that he (appellant) "had no more whiskey," but called attention to appellant's admission that he had a pint in the dresser drawer for his own use. The evidence to that effect was not excluded and it was proper for the attorney to comment on it.
The motion for rehearing is overruled.
Overruled.