
    KELLER v. STATE.
    (No. 10795.)
    (Court of Criminal Appeals of Texas.
    March 16, 1927.)
    I. Criminal law @=784( I) — Refusal to charge on circumstantial evidence held error, where guilt was only inferable from finding liquor in store where he worked.
    In prosecution for possessing intoxicating liquors for purpose of sale, refusal to submit ease on law of circumstantial evidence was error, where defendant’s guilt was inferable only from fact of finding liquor in the store where he worked.
    21 Criminal law @=823(16) — Failure to charge presence at place of crime was insufficient to convict as principal held not error, in view of other instruction.
    In prosecution for possessing intoxicating liquors for purpose of sale, exception to charge for failure to state that defendant’s bare presence at place of crime would be insufficient to justify conviction as principal, held unavailing, in view of charge that to convict jury must find from evidence defendant exercised control or ownership of whisky.
    Appeal from District Court, Carson County ; W. R. Ewing, Judge.
    E. R. Keller was convicted of possessing intoxicating liquor for purposes' of sale, and j he appeals. Reversed and remanded.
    H. R. Bishop, of Panhandle, for appellant. Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   LATTIMORE, J.

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

The facts show that appellant’s father was engaged in the grocery business in the town of Panhandle, appellant being a clerk in said establishment. On the occasion in question, officers', armed with a search warrant, went to the store of appellant’s father and found therein something over two gallons of whisky concealed in a sack. They also found a number of empty bottles, some of which had about them the odor of whisky. Appellant was unloading a truck load of goods which he had brought to the place from Amarillo, and he seems to have left the premises when he found that the officers had arrested his father and he was apprehended two or three days later. No one testified to having seen appellant in possession of or having any personal touch or contact with, or exercising any control, care, and management of the intoxicating liquor so found by the officers, save such as might arise from the fact of his working in the store of his father, and any inference which might follow from the fact that he testified that he ha’d bought the bottles found on the place. He said he bought them for the purpose of resale, and also to put oil and things of that kind in them, it frequently happening that tourists and persons passing by wanted oil and had no container to hold it.

There is only one bill of exceptions in the record, which was reserved to the failure of the court to instruct the jury on the law of circumstantial evidence. The state contends that such charge should not háve been given, and reference is had to Terry v. State, 101 Tex. Cr. R. 267, 275 S. W. 837. We do not think the Terry Case in point. In that case a quantity of liquor was found in the residence of the appellant himself, and we held it not necessary to charge on the law of circumstantial evidence. In this case, we take it from the testimony that at most appellant would be guilty as a principal offender, which conclusion, if sustainable at all, would be by reason, of the fact that he worked in the store with his father where a quantity of intoxicating liquor was found. The guilt of appellant’s father might be inferable from the fact of the finding in his store of a quantity of- intoxicating liquor, but there is no testimony showing that appellant brought the liquor there, or that he ever sold any of it, or that he in any way exercised any care, control, and management of said liquor, nor are any statements relative thereto attributed to him by any witness. Appellant took the stand himself, and testified positively that he did not know anything about the presence of said liquor, and had never sold any of it, and had nothing to do with it. We think the learned trial judge in error in not submitting the case to the jury upon the law of circumstantial evidence.

Appellant excepted to the eharge of the court for its failure to tell the jury that the bare presence of the defendant at the place where the crime is alleged to have been committed would not be sufficient to justify the jury in concluding him a principal. This would be a correct proposition of law, but we find that the court gave a special charge asked by appellant in which the jury were told that it was not sufficient that the defendant have knowledge that whisky was being kept on the premises, if the jury should find and believe that he had knowledge that whis-ky was so possessed, but that the jury must find and believe beyond a reasonable doubt that the defendant himself exercised some control or ownership over said whisky, and, unless the jury did so find and believe beyond a reasonable doubt, they should find him not guilty. We believe this sufficiently meets the complaint at the main charge for not instructing the jury that the naked presence of the defendant alone would not be sufficient. We seriously doubt-the sufficiency of the testimony.

Believing that the learned trial judge erred in refusing to charge the jury on the law of circumstantial evidence, and that such error was material, the judgment of the trial court will be reversed, and the cause remanded. 
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