Smith v. State (114 S.W.2d 878, 1938)

KRUEGER, Judge.

Appellant was convicted of possessing intoxicating liquor in dry area for purposes of sale. His punishment was assessed at a fine of $300 and confinement in the county jail for 90 days.

On the 31st day of July the sheriff of San Saba county obtained a search warrant to search appellant’s premises for intoxicating liquors. On the 2d day of August, the officers; armed with said warrant, went to his home to make a search. They observed some men about 100 yards from appellant’s home near the right of way of the Gulf, Colorado & Santa Fé Railway drinking beer. Appellant, at the time, was coming from that general direction. The officers found in the weeds on the right of way a ten-gallon tin can filled with ice and a few bottles of Pearl been A short distance away on the right of way they found a cardboard case containing Pearl beer. The number of bottles found on the right of way just filled the cardboard case. Some of the men who were drinking beer when the officers arrived testified that appellant got 4 bottles of beer from the right of way and gave each of them a bottle. They testified that they did not pay for it, nor were they asked' to do so by appellant. After their initial discovery, the officers went down a road along the fence line between appellant’s premises and a Mr. Simpson’s for a distance of over a mile. On Simpson’s premises,, a short distance from appellant’s property, they found 48 bottles of Grand Prize beer.

Upon the trial, the State, over appellant’s objection, was permitted to show not only the beer found on the right of way, but also the beer found on Simpson’s premises. Appellant had not been seen on Simpson’s premises, nor was any testimony introduced to show that he asserted any ownership to, or any connection with, the beer found on said premises.

It is our opinion that, in the absence of any evidence showing appellant’s connection with the beer found on Simpson’s premises, the trial court erred in admitting the evidence objected to.

The judgment is reversed and the cause remanded.

PER CURIAM.

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.

HAWKINS, Judge.

Because of the State’s insistent motion for rehearing, we have again examined the facts and are only confirmed in the view expressed originally that evidence of any connection between appellant and the beer found on Simpson’s place is lacking.

The motion for rehearing is overruled.