
    TERRY v. STATE.
    (No. 8764.)
    (Court of Criminal Appeals of Texas.
    May 6, 1925.
    Rehearing Denied Oct. 14, 1925.)
    1. indictment and information &wkey;ll(2)— Name of defendant need] not appear in minutes of court.
    Under Code Cr. Proc. 1911, art. 446, name of defendant need not appear in minutes of court, in order to identify indictment.
    2. Intoxicating liquors <&wkey;139 — “Possession” is having personal charge and exclusive right of ownership and! control of liquor.
    In prosecution for “possession” of intoxicating liquor, charge, defining “possession” as having personal charge of and exercising right of ownership and control of liquor in question, held proper.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Possession.]
    3. Criminal law <&wkey;814(17) — Possession of whisky in residence held prima facie evidence that it was possessed for purpose of sale.
    In prosecution for possession of intoxicating liquor for purpose of sale, failure to eharge on circumstantial evidence, whore one-half gallon of whisky was found in accused’s residence, was not error, since, under Acts 38th Leg., 2d Called Sess. (1923) c. 22, § 2e, this was prima facie evidence of possession for sale.
    
      <S=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    
      4. Criminal law &wkey;783( I) — Charge, that jury could not consider testimony of finding fiq-tior purchased from accused in witness’ car for any purpose, unless they believed that it shed light on offense charged, held proper.
    In prosecution for possession of intoxicating liquor for the purpose of sale, refusal to give charge limiting effect to be given finding of whisky in car of witness was proper, where testimony showed he had purchased whisky from accused shortly before search of accused’s house, and charge given instructed jury they could not consider this testimony for any purpose, unless they believed it shed light on offense charged,
    5. Criminal law <&wkey;>72l 1/2(3), 1171(1) — Remark of state’s counsel that he thought accused was going to prove character held error, but not to require' reversal.
    In prosecution for possession with purpose of sale of intoxicating liquor, remark of state’s counsel that it was thought from what the defendant’s counsel said about character that they were going to show his good character held improper, but not reversible error.
    6. Criminal law <&wkey;7831/2 — Special charge, withdrawing evidence as to still in prosecution for possession of liquor, held properly refused.
    Reiusal of special charge in prosecution for possession of liquor for sale, withdrawing evidence of finding of still on premises rented by accused, held not error, in yiew of other evidence tending to show defendant’s connection with it.
    7. Witnesses <&wkey;268( I) — Accused cannot ask officers finding liquor on premises whether • they saw ány whisky in his possession.
    In prosecution for possession of intoxicating liquor for the purpose of sale, refusal to allow accused to ask officers, who found whisky on his premises, whether they saw any whisky in his possession held proper.
    8. Criminal law <&wkey;804(I)— Statement, limiting purpose for which testimony could be considered at time of giving testimony, held not ' verbal charge.
    Statement of court, limiting purpose for which' jury could consider testimony of purchase of liquor from accused, made at time testimony was given, held not to be verbal charge.
    On Motion for Rehearing.
    9. Criminal law <&wkey;840 — Declining special charge not error where alternative was given.
    Where defendant requested special charge withdrawing from jury’s consideration evidence relating to finding of still on premises rented by accused, or in event of refusal that certain paragraph of main .charge be given held exceptions to defects and errors in such paragraph were waived.
    10. Criminal law &wkey;>673(I) — Evidence of finding whisky in car of witness properly admitted, in view of -charge as to consideration of evidence.
    Admission of evidence of finding whisky in car of witness was held proper, in view of charge that jury must believe beyond reasonable doubt that accused sold whisky to witness on night in question, before considering finding of whisky as bearing upon the case.
    11. Crimina! law &wkey;814(17)— Charg¡e of circumstantial evidence held not necessary, fn view of evidence) establishing ownership of’liquor.
    Contention that court should have charged on circumstantial evidence, because accused’s brother and wife also lived in house where liquor was found, held not sound, in view of other evidence establishing accused’s ownership and control of the liquor found.
    <@=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Commissioners’ Decision.
    Appeal from District Court, Wise County; F. O. McKinsey, Judge.
    Duther Terry was convicted for the possession of intoxicating liquor, and he appeals.
    Affirmed.
    M. W. Burch, of Decatur, and Phillips, Brown & Morris, of Fort Worth, for appellant.
    P. L. Gettys, of Decatur, and Tom Gar-,rard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

Appellant was convicted in the district court of Wise county for possessing intoxicating liquor for the purpose of sale, ,and his punishment assessed at 2 years and '6 months’ confinement in the penitentiary.

By bill of exception No. 1, complaint is made that the indictment could nol be identified by the minutes of the court, because the name of appellant does not appear therein. In this there was no error shown. Article 446, Code of Criminal Procedure; Bohannon v. State, 14 Tex. App. 272; Malloy v. State, 35 Tex. Cr. R. 389, 33 S. W. 1082; Fields v. State, 68 Tex. Cr. R. 606, 151 S. W. 1051; Haynes v. State (Tex. Cr. App.) 83 S. W. 16.

By bill of exception No. 2, appellant complains of the court’s charge in defining possession. The definition as given by the court was correct. Newton v. State, 94 Tex. Cr. R. 288, 250 S. W. 1037.

In this case, the court defined “possession” as “having personal charge of and exercising the right of ownership and control of” the liquor in question. In the Newton Case, supra, Judge Lattimore uses this language:

“We think the court’s definition of possession, as applicable to this offense, viz., that it ■ meant having personal charge of and exereis-ing the right of ownership and control of the liquor in question, presents no error.”

By bill of exception No. 3, appellant complains of the action of the court in failing to charge on circumstantial evidence. A charge on circumstantial evidence was not required in this case. One-half gallon of whisky was found in the residence of appellant where he and his1 wife lived, and over which he exercised full control. Under the statute, this was prima facie, evidence that appellant possessed the liquor for the purpose of sale. Section 2e, p. 54, Acts of Second Called Session of the Legislature, 1923; Davis v. State, 98 Tex. Cr. R. 643, 267 S. W. 513; Egbert v. State, 76 Tex. Cr. R. 663, 176 S. W. 560.

Bill of exception No. 4 complains of the refusal of the court to give appellant’s special charges; but a careful examination of the court’s charge convinces us that every right appellant had in this matter was fully protected.

By bill No. 5, appellant also complains of the court’s action in refusing to. give a special charge limiting the consideration or effect to he given the finding of the whisky in the car of the witness Layton, and also to •the finding of the whisky on the ground where Layton’s car was stopped. This charge was properly refused, in view of the charge on this question already given by the court. The testimony shows that Layton had bought the whisky found in his car from the appellant only a short time before the appellant’s house was searched, and under these conditions every right appellant had was protected by the court when he charged the jury to the effect that testimony had been admitted to the effect that a car, in which Layton and other persons were riding, had been stopped, and that whisky was found in the car and by the roadside near the place where the car was stopped, and that in that connection the jury was instructed that they could not consider this testimony for any purpose, unless they believed it shed light on the offense with which the defendant is charged, ,and unless they did so believe they would disregard said testimony for any purpose. We see no material difference between this charge and the one offered by the appellant, to the effect that, before they could consider this evidence, the jury must believe that the defendant had been in some manner connected with the whisky so found.

Bill of exception No. 6 complains of the remark of counsel for the state to the effect that it was thought from what defendant’s counsel had said about character witnesses for the defendant in the presence of the jury that they were going to show his good character. This remark ought not to- have been made; but, under the authorities in this State, it is not such error as will require a reversal. Coyle v. State, 31 Tex. Cr. R. 604, 21 S. W. 765; House v. State, 19 Tex. App. 239.

Bill No. 7 complains of the charge of the court, and of the refusal to give a special charge, as to the finding of a still at the time in question, on the place that the defendant bad rented and was in possession and control of at the time. The witness Kirkman testified that he was in the employ of the defendant, and that he helped construct one of the little houses, and that the deféndant had employed him to build it, and there was other evidence showing that the defendant was connected with the operation of this still. The still was right near the home where he was living, and the evidence is ample to show — at least by the strongest kind of circumstances — that he had a guilty connection with it.

By bills 8, 9, and 10 complaint is made of the court’s action in refusing to allow the appellant to ask the officers who found the whisky on defendant’s premises whether they saw any whisky in his possession, etc. We think that the cross-examination of these witnesses clearly shows 'that appellant was afforded every right to conduct a fair and reasonable cross-examination of them, and we see no abuse of the court’s discretion in the ruling complained of.

By bill No. 13 complaint is made because' the court permitted state’s counsel to ask the witness Oalvert, who was one of appellant’s attorneys, and who testified for him on the trial of the case, concerning certain statements that the state’s witness Layton was alleged to have made to him in his office, as to Layton’s condition with reference to being drunk, etc. This matter is of hardly sufficient importance to require discussion. The bill does not show what the witness’ answer was to some of the questions, and the entire matter seems to have been admissible as- reasonable cross-examination.

By bill No. 14 appellant complains that the court gave verbal instructions to the jury. This bill shows that while the witness Layton was testifying for the state that he went to defendant’s house on the night of the alleged offense about two hours prior to the time the officers searched the premises, and that he then and there asked the defendant i'f he had any whisky, and the defendant«said he did, and Layton told him he wanted a half gallon, and the defendant brought it to him and he paid him $5 for it, whereupon counsel for defendant objected to said testimony, and in admitting it the court made the statement that he would overrule the objection with the explanation that the defendant was on trial here for possession of intoxicating liquor for sale, and that the jury could not convict him for any other offense, and that they could not convict in this case for selling liquor, but if they believed defendant had liquor in his possession on the occasion testified about that they might consider this evidence, if they believed that it bore on the issue as to the purpose for which he had it in his possession, and that they could" not u.se it for any other purpose, and that it was admitted on that issue if the jury believed it had any bearing on it — that is, the purpose for which he had ■the whisky.

While it is true that the court may not give verbal instructions in a felony case, we do not conceive from the record before us that this was an attempt to do so. It was more in the nature of a limitation, favorable to the defendant, of the testimony at the time it. was admitted, and the court followed this with a correct written charge limiting this testimony. Under these conditions, we do not think the statement of the court' can be viewed as a verbal charge.

Finding no error in the record, and being convinced that the facts are sufficient to warrant the verdict of the jury, it is our opinion that the case should .in all things be affirmed.

PER OURIAM.

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, J.

We think it necessary to advert to only three matters urged by appellant in his motion for rehearing.

As throwing light upon the purpose for which appellant was in possession of the whisky found on his premises, the state proved that a still, barrels, mash, etc., were found on another place which appellant seems to have had under his control at the time. We stated in our opinion that this still was found near the home where appellant was living. This was a mistake. The still and other paraphernalia were found in a small house about 40 feet from a rented house on the farm under appellant’s control, but distant about a mile and a half from his residence. In paragraph nine of his main charge, the court undertook to limit the effect of the testimony as to finding the still on these other premises, by telling the jury, if they believed the testimony of - the witnesses relative thereto shed any light on, or showed any connection with, the offense for which the defendant was on trial, they might consider said testimony and give it such weight and credence as the jury deemed the same entitled to receive. Appellant excepted to said paragraph nine of the charge, because it failed to instruct the jury that before they could consider said testimony for jmy purpose they must believe, beyond a reasonable doubt, that defendant was in possession of of operating said still and equipment. This exception seems to be supported by Lankford v. State, 93 Tex. Cr. R. 442, 248 S. W. 389, and the authorities therein cited. It would raise a, serious question were it not for appellant’s special charge No. 11, which reads as follows:

“You are instructed as a part of the law in this case which you will consider along with the court’s main charge (a) that if you believe from the evidence that the officers of Wise county found a still and barrels of mash on premises other than on those on which the defendant resided at the time of the alleged commission of the offense for which the defendant is now under trial, you cannot consider same for any purpose, and same is hereby withdrawn from you., (b) And in the event the court refuses to give this charge, then defendant requests that he give in charge to the jury paragraph nine of his main charge.”-

This special charge is antagonistic' to the exception urged' against paragraph nine of the main charge. In the special charge, appellant specifically tells the court if he does not withdraw from the consideration of the jury the evidence relative to finding the still and mash, then he desired paragraph nine of the main charge to be given. Under this state of the record, we cannot hold the court to have been in error in refusing to comply with the exception presented to said paragraph nine. He committed no error in declining to withdraw the evidence.

As further throwing light upon the purpose for which .appellant possessed the whisky in question, the state proved that, a short time before the officers reached the house, appellant had sold some whisky to one Layton whom, they met as they were going to appellant’s premises. Evidence was admitted as to what was found in Layton’s car, and to the circumstances incident to the search of the ear by the officers. Complaint is made of the manner in which the court limited the purpose for which the testimony about stopping Layton’s car and finding whisky therein might he considered by the jury. This raises no serious question when taken ‘in connection with the charge immediately following in which the jury were told they must believe, from the evidence beyond a reasonable doubt that appellant sold whisky to Layton on the night in question before they could consider that circumstance as having any hearing upon the case then upon trial. The search of the car by the officers was only indicant to the sale of whisky to Layton. The court properly limited the testimony upon the vital point, to wit, whether appellant sold whisky to Layton.

Appellant renews his contention that the court should have charged on circumstantial evidence, because John Terry and his wife were also living in the same house in which appellant and his family resided, claiming that no presumption would arise that the whisky in the house was in the possession of appellant any more than in the possession of John Terry. As supporting this contention, appellant relies on Lehman v. State, 18 Tex. App. 174, 51 Am. Rep. 298, and Mathis v. State (Tex. Cr. App.) 272 S. W. 204. Unless there he evidence in the record taking the present case out of the principle announced in those referred to, it would appear that appellant’s contention is sound. There is some conflict in the testimony as to the quantity of whisky found in appellant’s residence, hut the testimony of the sheriff: is to the effect that they found in the house more than a quart.

The wife of appellant testified that John Terry and his wife had occupied the house with witness and her husband for about two years, living there as members of the family. She further testified that, on the evening before the officers found the whisky, a negro had brought" a jar about half full to the house and told witness to give it to her husband (appellant); that she had set it in the ice box where it was when the officers came, and that her daughter took it out of the ice ■box and hid it in the oven of the stove. Witness further testified that she an(l her husband had possession and control of the place on which they lived at the time of the search and arrest. Further on in her testimony, she says that when the negro brought the whisky to the house her husband would not drink it and set it in the ice box; that when the officers came her daughter asked if that whis-ky was still in the ice box, and upon being ■told that it was said she w.as going to hide it, and placed it in the stove. Considering all of the testimony, we believe the case is not one of circumstantial evidence, and the court committed no error in declining to charge upon that subject.

The motion for rehearing is overruled.  