
    PATRICK v. STATE.
    (No. 9838.)
    (Court of Criminal Appeals of Texas.
    Nov. 10, 1926.
    Rehearing Denied Dec. 22, 1926.)
    1. Intoxicating liquors <§=>236(7) — Evidence' held to sustain conviction for possessing intoxicating liquor for .sale.
    In prosecution for "possessing intoxicating liquor for sale, where empty bottles smelling of whisky were. found in defendant’s house boat, and two gallons of whisky were found on bank within easy reach, evidence, though denied, held sufficient to sustain verdict.
    2. Criminal law <§=>741 (I), 742(1) — Weight and credit of testimony is for jury.
    Determination of weight and degree of credit to be attached.to testimony is for jury.
    3. Criminal law <S=>I 159(2) — Jury’s finding will not be disturbed, unless contrary to weight of testimony.
    Jury’s finding on facts will not be disturbed, unless" against weight of testimony.
    Appeal from District Court, Jefferson County ; Geo. C, O’Brien, Judge.
    Cleve Patrick 'was convicted of possessing intoxicating' liquor' for purposes of .sale, and-he appeals.
    Affirmed.
    Blain & Jones,' of Beaumont, for appellant.’ , '
    Sam D. Stinson,'.State’s Átty., of Austin, and Robt. M. tyies, Asst. State’s .Atty., of Groesbeck',, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Jefferson county of possessing intoxicating liquor for purposes of sale, and his punishment assessed at three years in the penitentiary.

About 10 or 11 o’clock at night two officers with a search warrant went to a house boat occupied by appellant and his wife, in which appellant operated a sort of store where cigarettes, etc., were sold. The officers found on the boat at the time, beside appellant and his wife, two men, one of whom, according to their testimony, was drinking, but search of whom revealed no liquor on his person. According to appellant’s own testimony, said house boat was “down away from town, way off by itself in an out of the way place, down there in that slip.” One of the officers remained in the storeroom with the parties found there, while the other went to the back of the boat, where there was a kind of porch. The bank of the slip was supported by piling, and the boat lay so near along side of this piling that, according to the witness French, one could step from the boat porch to the bank. Said bank was about three or four feet above the porch and on the edge of said bank and within reach of said back porch of the boat, French testified th£ft he saw an old quilt, the removal of which revealed a hole either dug or sunk in the ground, and in this were two bottles of whisky, referred to in one place-by French as quart bottles, but later referred to both by Mr. Stark and French as gallon bottles. On this point the 'wife of appellant said in her testimony French holloed back that he had two gallons. In addition to the two gallon bottles just referred to, French testified that on the back porch were several five-gallon jugs and one or two gallon bottles, all of which smelled of corn whisky. He also testified that on the bank were a number of empty quart bottles “just throwed out around the house.” By the use of the word “house,” the witness evidently referred to the house boat. Mr. French said he stood on the back porch of the boat, reached his hand over the bank, and got the two bottles -of whisky referred to. It is in testimony that said house boat had been at the place where it was for about a year.

Appellant’s wife swore that she saw French crawl off the boat onto the bank and get way high up on the railroad track. She said he came from some place out there on the prairie holloing that he had twb gallons. For some reason she was not asked either on direct or cross-examination in reference to appellant’s possession, of, or sale of whisky. She made no denial of such possession or sale, but did deny any knowledge of a hole or cave in the bank near the back porch of the boat. Appellant took the stand and denied possession of any whisky; denied the presence" of any big bottles or jugs on his porch that smelled of' whisky. He explained' the bottles on the bank, referred to by Mr. French, by saying ■that boats came up there and sailors were around there.' We find no. suggestion in the testimony that there was any boat landing ' -or public passway near said boathouse. The reference by appellant’s wife to a railroad track is accompanied by no statement from ' any witness as to where such railroad track was located or its proximity to the house boat. One of the men who was on the boat '■with appellant when the officers raided the place testified for the defense. He said the officers brought in a couple of bottles of whis-ky after the search; but in another place he said he did not see any liquor on that evening. Probably he meant before the officers came. He testified that he had been on the back porch of appellant, but never noticed any hole in the side of the bank. He also said, however, that one could reach the bank from ¡the back porch of the boat. Officer French was placed on the stand for the state in rebuttal, and said he did not go out of the boat and upon any railroad track and find any ■whisky up there. He testified that appellant’s wife was not out' on the back porch ■when he was there and found the whisky. He further said that, after he found the two gallon bottles in the hole under the •quilt, he crawled upon the bank and looked .around, but found nothing more. The house •boat was right up against the bank. This fis the substance of the testimony. • ■

There are no exceptions to the charge -which submitted the case on the theory of • circumstantiál evidence, and told the jury ■ that possession meant having personal charge • of, exercising the right of ownership and control of the liquor in question, whether same : be found on appellant’s premises or not.

Save the flat denial of appellant, there is .nothing to call in question his possession of ■the liquor. Symington and his mate, who ■were the two men at appellant’s place at the late hour in the night referred to, could not >-be suspected of such possession, except in eol-llusion- or in connection with appellant. That ■any other person should go within a few feet of an inhabited house boat, situated, as appellant said, “way ofE there in an out of the way place,” and dig a hole or place two gallons of whisky in a hole already dug-and then -cover it with á quilt and go away and leave it, would seem to the writer to be a theory which mildly stated no jury would be called on to accept.. The presence of a number of containers, bottles similar to the ■ ones found under the quilt, and jugs, etc., on the back porch of appellant’s boat,, all yielding the same odor as" that of the liquor found in the two bottles, and the finding of the two gallon bottles within easy reach of appellant’s porch, covered by a quilt, coupled with the presence of other bottles Scattered around on,the nearby bank, and the presence of: a. sailor drinking, but having on. his person, no bottle of liquor, seem ample justification for the jury’s conclusion of appellant’s guilt:

The witnesses were before the trial court and jury. In Reardon v. State, 4 Tex. App. 602, we said-that the' district judge and the jury are in better positiop to decide properly. the weight and degree of Cre.dit to be attached to the testimony Of the different witnesses than the appellate court by an inspection of-the record. .Numerous .cases hold with Aur statute that the freight of the testimony is for the jury, and, unless their finding is against the weight of the testimony, it will not be disturbed on the facts. In Welch v. State, 57 Tex. Cr. R. 111, 122 S. W. 880, we said that this court, on appeal, will .only Be justified, in setting aside, a ¡verdict on the facts, when there is no evidence supporting the jury’s finding. In O’Hara v. State, 57 . Tex. Cr. R. 577, 124 S. W. 95, we said that a, verdict which has received the approval of the trial court will not be interfered with, in the, absence of an abuse of his discretion.

Believing' the evidence in this case sufficient to support the findings of the jury, the judgment will be affirmed.

On Motion for Rehearing.

Appellant files a lengthy and carefully prepared motion "for rehearing, urging that this court misinterpreted the testimony in several particulars, and insisting that our conclusion that the testimony supported the verdict- was erroneous. The several' members of this court had given the facts in this case careful scrutiny before the original opinion was handed down, and the record has been again examined in the light of appellant’s motion, but we are unable to reach a different conclusion. To us it seems that the evidence was sufficient.

The motion for rehearing is overruled. 
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