
    HILL v. STATE.
    (No. 9923.)
    (Court of Criminal Appeals of Texas.
    March 17, 1926.)
    Criminal law ■ <&wkey;>763, 764(8) — Instruction that one riding in automobile, knowing it contained intoxicating liquor, was guilty of possessing such liquor held on the weight of evidence.
    . In prosecution for possessing intoxicating liquor, where accused was in automobile containing whisky, but did not discover that it contained liquor until just before arrival at town where he was arrested, instruction that one riding in automobile, knowing it contained intoxicating liquor, may be deemed in possession thereof held error, as being on weight of evidence.
    Commissioners’ Decision.
    Appeal from District Court, Van Zandt County; Joel R. Bond, Judge.
    Adolphus Hill was convicted of possessing intoxicating liquor, and he appeals.
    Reversed and remanded.
    Jno. L. Poulter, of Fort Worth, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat5 Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The offense is the possession of intoxicating liquor, and the punishment is three years in the penitentiary.

The -facts show that one Holmes, a white man, was found in a car a few miles east of Canton, and that said car had a large quantity of whisky in it. Appellant was arrested in the town of Canton, and made a statement in which he admitted that he came there with a man named Holmes, but stated that he had left Fort Worth as a .mechanic; that he did not know there was any whisky in the car until a short time.before the battery went dead just east of Canton; that he learned that whisky was in the car when one of the bottles broke, and Holmes admitted to him, at that time, that 'the car did contain whisky; that he, the witness, lived in Fort Worth, and had only 15 cents, and for .that reason remained in the car with Holmes. It was his theory, and his testimony raised the issue, that his connection with the automobile was that of a mechanic only, and that he had no knowledge of, or connection with, the transportation or possession of the liquor that was in the car save as above indicated.

The court, in paragraph 2 of his charge to the jury, said:

“By the word ‘possess,’ as mentioned in’ the foregoing statute, is meant the actual personal control, care, and management of the property, either alone, or jointly with others, and does not necessarily mean the ownership thereof. A person riding in an automobile, knowing at the time that same contained intoxicating liquors, may be deemed in law in possession of the intoxicating liquors.”

Defendant objected to said charge in the following way:

“Defendant objects and excepts to that part of section No. 2 of the court’s main charge wherein the jury are instructed that ‘a person riding in an automobile, knowing at. the time that same contained intoxicating liquors, may be deemed in law in possession of the intoxicating liquorsi,’ because such charge is grossly upon the weight of the evidence, andáis misleading and calculated to be highly prejudicial to the rights of the defendant, and such instruction is no part of the law of this state, and is improperly included in said charge.”

The rule is well settled in Texas that the court is not authorized to charge upon the weight of the evidence. The charge as given as effectively withdrew appellant’s defense as if the jury had been in plain language told to disregard it Many cases will be found collated under article 735, Vernon’s C. O. P., which condemn the action of the court in charging on the weight of the evidence.

Because of the error of the court as above indicated, the judgment is reversed and the cause remanded.

PER CURIAM.

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. 
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