
    BROWN v. STATE.
    (No. 10694.)
    Court of Criminal Appeals of Texas.
    June 22, 1927.
    I. Criminal law <&wkey;784(I) — Refusing to instruct that case against defendant charged with possessing liquor for sale was circumstantial held error.
    In prosecution for possessing intoxicating liquor for the purpose of sale, refusal to instruct the jury that case was dependent upon circumstantial evidence held error. |
    2. Intoxicating liquors <&wkey;249 — Statute dealing with search warrants for intoxicating liquor held to apply only to search of private residences and not to search of place of business (Pen. Code 1925, art. 691).
    Pen. Code 1925, art. 691, providing for search warrants for intoxicating liquor and that no warrant shall be issued to search a private dwelling occupied as such except in certain cases, held to be restricted to the search of private residences, and not to apply to the search of a place of business.
    3. Criminal law <&wkey;>394 — Evidence that officers found whisky buried in alley back of business house held admissible without a search warrant.
    . In prosecution for possessing liquor for sale, evidence that officers found a gallon of whisky buried in the alley in the rear of defendant’s business house held admissible without procuring a search warrant.
    Appeal from District Court, Jefferson County; J. D. Campbell, Judge.
    Jack Brown was convicted of possessing intoxicating liquor for the purpose of sale, and he appeals.
    Reversed and remanded.
    F. G. Vaughn, of Beaumont, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Conviction for possessing intoxicating liquor for purposes of sale; punishment, one year in the penitentiary.

There are three counts in the indictment. In his charge to the jury, the learned trial judge confined them to consideration of the third count, which charged appellant specifically with possessing whisky for the purpose of sale. Looking to the record, we observe that witnesses testified that, when they went into, appellant’s place of business, he went hastily into a rear room and poured something from a pitcher into a tub containing slop, swill, etc. The witnesses said they could not tell what was in the pitcher, but dipped up a quantity of the contents of the tub, which was later analyzed by a chemist, who said it contained 7 per cent, alcohol. There was no testimony showing that the contents of the pitcher was whisky.

In the alley behind appellant’s place, and not far from his rear door, the officers found a gallon of whisky buried. Its proximity to his place seems to be relied upon to support the conviction in this case, and possession of this whisky is the main reliance of the state.

There was an exception to the failure of the trial court to charge on circumstantial evidence, and a special charge was presented seeking to have the jury told this to be a case dependent upon such character of testimony. This was refused. In our opinion the learned trial judge fell into error in refusing to instruct the jury in accordance with this request. The testimony showed that there were a number of other business houses haying back entrances near to that of appellant, whose occupants would have 'access to the place where the gallon of whis-ky was found buried. The witnesses testified that whisky had been found in the rear of some of these other places.

No witness having testified that the whisky belonged to appellant, or that it was found on his premises, or directly in his possession, we are of opinion that the case was one of circumstantial evidence. »

Appellant complains in his fourth bill of exceptions of the refusal of his motion to strike out all the evidence introduced on the trial of this ease, based on the proposition that the search warrant was not sufficient. The search warrant in this case was to search a place of business, and is not governed by the special provisions of article 691, P. O. (1925) which is restricted to the search of private residences. The overruling of the motion was further not erroneous for the reason that the finding of the gallon of whisky buried in the alley in the rear of appellant’s business house was not evidence of any facts found as the result of a search requiring the possession of a search warrant in order to legalize same. There are other bills of exception in the record which are not discussed, but none of which seem to present reversible error.

Por the error mentioned, the judgment will be reversed, and the cause remanded. 
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