Crimaldi v. State

BELCHER, Judge. Appellant was convicted for the unlawful possession of aleo [601] holic beverages for the purpose of sale in a dry area; punishment assessed at six months in jail and a fine of $1,000. It was stipulated that Lubbock County was a dry area. On November 3,1952, two representatives of the Texas Liquor Control Board, two deputy sheriffs, and the constable went to a building in Lubbock occupied by the Hub City Club, owned and managed at the time by the appellant. This building had a dining room, space for dancing, kitchen, storerooms, and an office. After entering the main building, the officers opened the office of appellant, and in his absence found sixteen bottles of whiskey and gin with two bottles partly empty in an ottoman, then the officers left the office. Within five minutes, the appellant came and entered the office, taking a seat behind a desk. The officers followed him, and one sat on the ottoman within three or four feet of the desk, while others were searching in the rooms. The ottoman was in the way of the search and upon an effort to move it, the appellant took hold of it and the top came off, exposing the sixteen four-fifths of whiskey and gin, all full except two that had been opened. Appellant appeared to be surprised, saying “he had been framed by some Negroes.” This office could be locked and appellant had a key. Appellant testified that he did not know the liquor was there and it was not his; that someone had placed it there without his knowledge; that several persons had access to the office. The court charged the jury that if appellant had no knowledge of the whiskey and gin to find him not guilty or if they had a reasonable doubt thereof, to acquit him. We find the evidence sufficient to support the judgment. Appellant contends that the court erred in overruling his first application for a continuance because of the absence of an alleged material resident witness who had not been summoned; appellant further alleged that he had learned that said witness was in Fort Worth, “and probably will not return for a couple of weeks or more, but will return before the next term of this court.” Neither the application for said witness, nor the subpoena for him appear in the record. It is not shown that the subpoena was delivered to the sheriff or other officers, nor is it shown to [602] what county it was directed. In the absence of this information, this court is unable to determine whether the appellant used diligence to secure the attendance of the witness. Green v. State, 113 Tex. Cr. R. 555, 23 S.W. 2d 721. No error is shown in overruling appellant’s motion for continuance. Appellant complains of the failure of the court to charge on circumstantial evidence, as shown by a bill of exception and a requested charge. The evidence discloses that sixteen “four-fifths of whiskey and gin” with two bottles partly empty, were found in appellant’s office. Art. 666-23a (2), V.A.P.C., provides that “possession of more than one quart of liquor in a dry-area shall be prima facie evidence that it was possessed for the purpose of sale,” and the court instructed the jury in accordance with this provision. Therefore, appellant’s contention that a charge on circumstantial evidence should have been given cannot be sustained. Clinnard v. State, 149 Tex. Cr. R. 472, 196 S.W. 2d 522; Magee v. State, 135 Tex. Cr. R. 161, 118 S.W. 2d 591. Finding no reversible error, the judgment of the trial court is affirmed. Opinion approved by the Court.