Heeter v. State

MORROW, Presiding Judge. The offense is the unlawful possession of intoxicating liquor for the purpose of sale, punishment fixed at confinement in the penitentiary for one year. The dwelling of the appellant was searched and there were found therein a number of little fruit jars. Some of these had the odor of whiskey and some contained a small quantity of whiskey, amounting in all to about half a pint. No other whiskey was found in the physical possession of the appellant. Some distance from his house, in the cornfield, which, according to the State’s evidence, was in possession of the brother of the appellant, who lived about three-quarters of a mile distant, there were found four gallons of whiskey. In another locality there were some barrels of mash. On the appellant’s premises there were found a sack of sugar and chops. There were tracks of children and men in the cornfield and near where the whiskey was found. The tracks apparently led towards the dwelling of the appellant. At the time of the search, no members of the appellant’s family except himself were at home. The State’s evidence showed that appellant had some children. Where they were is not disclosed, nor how long they had been away. The possession of the small quantity of whiskey in the house of the appellant was not shown to be unlawful. It was not sufficient in quantity to come within the statute declaring the possession of more than a quart of whiskey to be prima facie evidence of an unlawful intent. The circumstances touching the whiskey found in the cornfield are not deemed of such cogency as to show, beyond a reasonable doubt, that it was in the possession of the appellant. See Sterrett v. State, 98 Tex. Crim. Rep. 423. For the reasons stated the judgment is reversed and the cause remanded. Reversed and remanded.