
    SCHENK v. STATE.
    (No. 10428.)
    Court of Criminal Appeals of Texas.
    April 13, 1927.
    I. Intoxicating liquors @=>248 — Where liquor was 300 feet from residence, affidavit of one person held sufficient for search warrant notwithstanding statute (Pen. Code 1925, art. 691).
    Affidavit for search warrant held sufficient in liquor case, though sworn to by only one person, where outbuilding in which liquor was found was 300 feet from defendant’s dwelling, separated therefrom by vacant lot, and not shown to- be on his land, notwithstanding Pen. Code 1925, art. 691, relating to search warrants for liquor in private dwellings.
    21 Criminal law <@=>784(0 — 4n liquor case, held error to refuse charge on circumstantial evidence, where possession and ownership were mere inferences.
    In liquor ease, held error to refuse charge on circumstantial evidence, where defendant’s ownership and possession were mere inferences from facts of the liquor being found in an outbuilding 300 feet from his residence and the finding of a still three-fourths of a mile distant.
    3. Intoxicating liquors @=>139 — “Possession” within liquor law is exercise of car.e, control, and management of liquor.
    Within the liquor law, “possession” is the exercise of care, control, and management of liquor.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Possession.]
    Appeal from District Court, Archer County ; H. R. .Wilson, Judge.
    Nick Schenk was convicted of possessing intoxicating liquor for purposes of sale, and he appeals.
    Reversed and remanded.
    
      Mathis & Caldwell, of Wichita Falls, 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 of possessing intoxicating liquor for purposes of sale; punishment, one year in the penitentiary.

With a search warrant, a Blr. Ikard went to the home of appellant. Nothing was found in his residence, but in a henhouse 48 half-gallon jars of corn whisky were found, and some distance from the residence a still in operation was discovered, near which were 9 other half-gallon jars of com whisky. Appellant did not testify, but apparently relied on the affirmative defense that he did not put the whisky in the henhouse, and did not know it was there. He introduced only one witness, who testified that he lived across the street from appellant, that the latter had several outhouses, the one where the whisky was found being about 300 feet from appellant’s residence and'across a vacant lot from same, and further that this particular outhouse was not at said time used by appellant as a chicken house. This witness further testified that on the day before appellant’s arrest. he saw a man place a case, “one what the fruit jars are in,” in this outhouse.

At appellant’s request the court gave a special charge to the effect that if the jury believed that appellant did not know the liquor was on his premises, or had a reasonable doubt thereof, they should acquit.

We think the affidavit for the search warrant sufficient, even though sworn to by only one person. The house where the liquor was found was not the private residence of the accused. It is no£ even shown that the house was on his land, and without dispute was separated from the dwelling by a vacant lot. In such case we think the search warrant and affidavit should be governed by the general provisions of the statute and not by any special provisions contained in article 691, P. O. 1925.

An exception was taken to the charge for its failure to submit the law of circumstantial evidence. A special charge submitting the law of this issue was refused. The factum probandum in the case was the pos.-session of intoxicating liquor for the purposes of sale, by appellant. Enough liquor to justify the assumption by the jury that it was possessed by some one was found in said house. This house, as above stated, was some 300 feet from the dwelling and separated therefrom by a vacant lot. No one denied this fact The .state witness testified that when he reached the premises he saw appellant near the house where the liquor was afterward found.' No admission of appellant; or other proof of his ownership or possession, appears. The only defense witness testified that he saw a man, other than the appellant, on the day before the arrest, place a case such as contained fruit jars, in the house where the liquor was found. The still found was some three-fourths of a mile from the residence, and when the officers approached same they observed a man, other than appellant, run away from the still. The fact of ownership and possession, if any, was but an inference deducible from all the circumstances in- the case, and it appears to us plain that a charge on circumstantial evidence should have been given.

There is a bill of exceptions complaining of certain argument made by state’s counsel in his closing address to the jury, which is asserted to be a reference to the appellant’s failure to testify. The bill is on close lines, but inasmuch as the case must be reversed for the reason set out, and this will not likely occur upon another trial, we do not discuss it.

Complaint is made of the definition of “possession.” In view of another trial, it is suggested that a better definition of the term “possession” is the exercise of care, control, and management of the liquor in question.

For the error above mentioned, the judgment is reversed and the cause remanded. • 
      @=For other oases see.same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     