
    LEVERETT v. STATE.
    (No. 11184.)
    Court of Criminal Appeals of Texas.
    Dec. 14, 1927.
    t. Intoxicating liquors &wkey;s236 (7) — Evidence that persons drank whisky at defendant’s house, and sometimes left with packages, sustained conviction of possessing liquor for sale.
    Circumstantial evidence that persons went to defendant’s house, drank whisky there, and in some instances carried away small packages, 'held sufficient to sustain conviction of possessing intoxicating liquor for purpose of sale.
    2. Intoxicating liquors <§=>228 — Evidence that persons drank whisky at defendant’s home, and paid his wife therefor, was properly admitted, in view of defendant’s presence and knowledge.
    In prosecution for possessing liquor for purpose of sale, testimony that persons, after receiving whisky from defendant’s wife at defendant’s home, left money on table, or agreed to do so, was properly admitted, in view of defendant’s presence at his home at the time and his knowledge that whisky was drunk at his home.
    3. Intoxicating liquors <&wkey;>233(l) — Testimony as to persons entering and leaving defendant’s house, sometimes carrying packages, held property admitted in liquor prosecution.
    Where prosecution for possessing intoxicating liquor for purpose of sale depended on circumstantial evidence, testimony that defendant’s house was frequented day and night by many persons coming and departing in automobiles, some of them carrying packages, was properly admitted.
    4. Intoxicating liquors &wkey;>228 — Evidence that persons received whisky from defendant’s wife was properly admitted, where evidence suggested that defendant and wife were acting together.
    In prosecution for possessing intoxicating liquor for purpose of sale, evidence that persons drank whisky at defendant’s hume, which whisky they had received from defendant’s wife, not in defendant’s presence, was properly .admitted on theory that acts and declarations of one in furtherance of common design is binding on the other, where evidence suggested that defendant and his wife were acting together.
    Appeal from District Court, Garza County; Gordon B. McGuire, Judge.
    Monroe Leverett was convicted of unlawfully possessing intoxicating liquor for purpose of sale, and he appeals.
    Affirmed.
    Owen W. McWhorter, of Lubbock, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is the unlawful possession of intoxicating liquor for the purpose of sale; punishment fixed at confinement in the penitentiary for a period of two years.

Condensed, the state’s evidence is this: Two young men, Clark and Reynolds, went to the home of the appellant on two occasions upon the same day. On the first occasion they obtained whisky from Mrs. Leverett, appellant’s wife, left $1 on the table, and engaged in drinking the whisky on the premises in the presence of the appellant. On the second occasion, a like transaction took place; Clark agreeing to pay $2.50 fo¡r the whisky received. The occurrence took place on the 20th of the month. According to the testimony of neighbors, before, up to, and including that time, many persons in automobiles had been observed going to and from the appellant’s residence, some in the daytime and some at night, and in some instances they were carrying small packages upon leaving. Clark and Reynolds became intoxicated, had an automobile accident, and were arrested.

The defensive theopy, as coming from the appellant and his witnesses, was in substance this: Clark and Reynolds came to his home in an intoxicated condition, and asked for whisky. Upon being advised that none was to be had, they produced some, drank it upon the premises, and became boisterous. State’s witnesses who were at the appellant’s premises upon the same day (papt of whom saw Clark and Reynolds, and part of whom did not), testified that there was drinking upon the premises in the presence of the appellant, and corroborated the appellant’s theopy that Clark and Reynolds came to the premises with whisky, and drank it there.

The evidence is circumstantial, and the jury was so instructed. The opinion is expressed that the circumstances are sufficient to show that there was whisky kept at the home of the appellant fop the purpose of sale, and that he and his wife were joint offenders.

The complaint of testimony to the effect that, after receiving whisky from appellant’s wife at his home, Reynolds left money on the table, is not deemed tenable. Appellant’s presence at his home at the time, and his knowledge that the whisky was drunk at his home, together with other relevant circumstances to which, reference is made above, rendered the testimony of the acts of his wife admissible against him. The same is tpue of the complaint of the testimony that, after buying a pint of whisky at the appellant’s home, which whisky was received from the appellant’s wife, and drunk partly in her presence, Clark agreed to pay her for the whisky.

The case depending upon circumstantial evidence, the testimony of the facts that the house was frequented day and night by many persons coming and departing in automobiles, some of them carrying packages, is not deemed impropeirly received.

In bill No. 4 complaint is made of the receipt of tbe testimony as to the transaction in which the witnesses Clark and Reynolds received and drank whisky while at the home of the appellant; the ground of the objection being that the whisky was received from Mrs. Eeverett, and not in the presence of the appellant. It appears from the bill that the appellant was present at least a part of the time during which the witnessess were drinking the whisky which they had received from his wife. In qualifying the bill, the court said:

“No objection was offered to the evidence when it was offered and given, but after it was in; the objection was made and overruled, the defendant having testified he was in his home all the afternoon.”

The evidence is such as to suggest that the appellant and his wife were acting together in the commission of the offense. The acts and declarations of one in furtherance of the common design is binding upon the other. Kirby v. State, 23 Tex. App. 13, 5 S. W. 165, and cases collated in Branch’s Ann. Tex. P. C. p. 350, § 691.

Finding no error in the record, the judgment is affirmed. 
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