Opinion
No. 32408.
November 16, 1960.
Appeal from the County Court, Lamb County, Pat Boone, Jr., J.
Billy Hall, Littlefield, for appellant.
Curtis R. Wilkinson, County Atty., Littlefield, and Leon B. Douglas, State's Atty., Austin, for the State.
The conviction is for the unlawful possession of whiskey in a dry area for the purpose of sale; the punishment, a fine of $500.
Proof was offered that Lamb County was a dry area.
The testimony of three officers shows that on the search of appellant's house, they found eighteen pints of whiskey.
Appellant, testifying in his own behalf, admitted that he had possession of eighteen pints of whisky in his house as shown by the state, but testified that he possessed it for his own personal use and not for sale. On direct examination he testified that he had told the officers that any time they wanted to search his place 'Just go ahead'. On cross-examination he confirmed his previous invitation to the officers to look over his place and even renewed his consent for them to do so while he was testifying. A witness called by appellant supported his testimony that he possessed the whiskey for his own use.
The court in its charge applied the prima facie evidence rule in accordance with Art. 666-23a(2), Vernon's Ann.P.C.
The evidence is sufficient to support the conviction.
Appellant attacks the sufficiency of the search warrant and on that ground contends that the court erred in admitting testimony showing the search and also erred in permitting the introduction of the whiskey found as a result of the search. While testifying, the appellant admitted his possession of the whiskey as shown by the state, therefore, he is in no position to complain of the search and the admission of the whiskey in evidence. Soble v. State, 153 Tex.Crim. R., 218 S.W.2d 195; Spencer v. State, 154 Tex.Crim. R., 225 S.W.2d 174; Slinas v. State, 159 Tex.Crim. R., 266 S.W.2d 388; Benavidez v. State, 164 Tex.Crim. R., 296 S.W.2d 774; 13A Tex.Dig.Crim.Law k1169(3)c, p. 537; 5 Tex.Jur.2d, Sec. 446, pp. 707-708; 3 Branch 2d, Sec. 1330, p. 104.
It is contended that the charge to the jury in connection with the definition of proof to the appellant to prove his innocence.
An examination of the charge shows that the jury was instructed that if they found beyond a reasonable doubt that the appellant possessed more than one quart of whiskey then such finding raised a presumption that such possession was for the purpose of sale, which presumption may be overcome by evidence showing that such possession was not for the purpose of sale.
The court charged the jury on the presumption of innocence, the burden of proof, and the application of the law of reasonable doubt.
Appellant's contention is overruled.
The other contentions presented have been considered and they do not show error.
The judgment is affirmed.
Opinion approved by the Court.