
    HEETER v. STATE.
    (No. 9814).
    (Court of Criminal Appeals of Texas.
    Feb. 10, 1926.
    State’s Rehearing Denied March 17, 1926.)
    1. intoxicating liquors &wkey;>236(6i/2) — Possession of a half pint of whisky in fruit jars held not shown to be unlawful.
    In prosecution for possession of intoxicating liquors for sale, possession of one-half pint ■of whisky in fruit jars was not shown to be unlawful; being insufficient in quantity to come within statute declaring possession prima facie evidence of unlawful intent.
    2. Intoxicating liquors <&wkey;236(6!/2) — Finding of whisky in cornfield some distance from defendant’s house and foot prints held insufficient to show defendant’s possession*.
    Finding of four gallons of whisky in cornfield some distance from defendant’s house, with tracks apparently leading towards his ■dwelling, held, insufficient to show whisky was in possession of defendant.
    On Motion for Rehearing.
    3. Criminal law <&wkey;>72l(3) — State’s attorney’s reference to defendant’s failure to rebut supposed prima facie case held reversible error (Pen. Code 1925, art. 671; Rev. St, 1925, art. 710).
    In prosecution for possession of intoxicating liquor for sale, comment of state’s attorney, who assumed that defendant’s possession of liquor found in cornfield had been shown, and prima facie case established under Ren. Code 1925, art. 671, on defendant’s failure to rebut state’s evidence, taken in connection with his prior comment that defendant was present and could testify, held an improper comment on defendant’s failure to testify, under Rev. St. 1925, art. 710.
    Appeal from District Court, Johnson County ; Irwin T. Ward, Judge.
    Frank Heeter was convicted of the offense of unlawfully possessing intoxicating liquor for the purpose of sale, and he appeals.
    Reversed and remanded.
    W. E. Myres, of Fort Worth, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, 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 one year,

The dwelling of the appellant was searched, and there were found therein a number of little fruit jars. Some of these had the odor of whisky, and some contained a small quantity of whisky, amounting in all to about half a pint. No other whisky was found in the physical possession of the appellant. Some distance from his house, in the cornfield, which, according to the state’s evidence, was in possession of the brother of the appellant, who lived about three-quarters of a mile distant, there were found four gallons of whisky. In another locality there were some barrels of mash. On the appellant’s premises there were found a sack of sugar and chops. There were tracks of children and men in the cornfield and near where the whisky was found. The tracks apparently led towards the dwelling of the appellant. At the time of the search, no members of the appellant’s family, except himself, were at home. The state’s evidence showed that appellant had some children. Where they were is not disclosed, nor how long they had been away.

The possession of the small quantity of whisky in the house of the appellant was not shown to be unlawful. It was not sufficient in quantity to come within the statute declaring the possession of more than a quart of whisky to be prima facie evidence of an unlawful intent. The circumstances touching the whisky found in the cornfield are not deemed of such cogency as to show, beyond a reasonable doubt, that it was in the possession of the appellant, gee gterrett v. State, 265 S. W. 1034, 98 Tex. Cr. R. 423.

For the reasons stated, the judgment is reversed and the cause remanded.

On Motion, for Rehearing.

HAWKINS, J.

The state, through, Hon, Jewel L. Bauldwin, county attorney of' Johnson county, has filed a motion for rehearing, insisting that we were in error in reversing the judgment upon the ground that the evidence was insufficient to support the conviction, and cites in support of his contention Miller v. State, 267 S. W. 487, 98 Tex. Cr. R. 621; Simmons v. State, 270 S. W. 852, 99 Tex. Cr. R. 548; Casey v. State, 265 S. W. 150, 98 Tex. Cr. R. 183. These authorities are believed to be much in point under the facts disclosed by the record. Sterrett v. State, 265 S. W. 1034, 98 Tex. Cr. R. 423, cited in our original opinion, may be distinguished upon the facts from the present case. Sterrett appears not to have been at his home at the time the whisky was discovered, and was only there at intervals, spending most of his time at Fort Worth in another county in the contracting business. The testimony in that case showed that accomplice witnesses made .the whisky and had it in their possession. In the present case the facts disclose that, in addition to the small amount of whisky found in the containers in appellant’s house, and the finding of a 100-pound sack of sugar, and a 100-pound sack of chops therein, some 35 feet west of appellant’s house near a well were found two barrels, in one of which was a small quantity of mash; that near these barrels was a funnel containing cotton, which was saturated with corn whisky. In front of appellant’s house were two cornfields, with a cotton field between them. In one of these fields, between 50 and 75 yards from appellant’s house, the officers found four and one-half gallons of corn whisky. A man’s tracks and some children’s tracks led from appellant’s house to this point and back. Appellant had some children. There were no tracks leading away from this whisky in any other direction save that some led to a point in the other cornfield where were found three barrels containing mash. Tracks were also found leading from appellant’s house to this latter point. None led away from there in any other direction. The nearest residence of other parties was some three quarters of a mile from where the whisky and mash were found. Appellant was present at the time the officers made the discoveries mentioned, but there seems to have been no effort made to fit the shoes of appellant in the tracks found going to and from the whisky or the barrels of mash nor measurements made of the tracks in comparison with appellant’s shoes, nor any further effort to identify the tracks as those of appellant or of his children other than as shown by the .circumstances related. It may be admitted that the. case is upon close lines, and the court may have been in error in basing the reversal upon the facts . which may be more fully developed upon another trial, should one be had.

Complaint,is made of reference in argument to the failure of appellant to testify. This was not discussed in our original opinion. This complaint must be sustained, and calls for. overruling the state’s motion for rehearing, without'further reference to the evidence. The matter complained of arose in this wise. While one of the state’s witnesses was testifying, it was elicited on cross-examination that he did not know that appellant’s brother was cultivating the land upon which the four and one-half gallons of whisky had been found, but had appellant’s word for it that he had rented this land and then sub-rented it to his brother. At this point in the cross-examination state’s attorney objected that such testimony was hearsay, and said, “This defendant is here; if he wants to testify to the fact that his premises were sub-rented,’’ at which point he seems to have been interrupted by exception taken by counsel for appellant, one ground of which was that the statement made by the state’s attorney in the presence of the jury was a comment on appellant’s right to testify. By another bill it is shown that appellant did not testify, but that during the argument of state’s attorney he said “that the defendant introduced no evidence that the whisky was not possessed for sale, and did not rebut by any evidence the testimony of the state.” The bill recites that no other parties were present at the time the raid was made save the officers and appellant. The officers testified for the state. It is contended that it is affirmatively shown by the evidence that appellant was the only one who could contradict the testimony offered by the state, and the only person who could testify that the whisky was not possessed for sale, and was therefore an allusion to his failure to testify. If we understand the record, counsel for the state in his argument had assumed that the whisky found in the cornfield had been shown to be in the possession of appellant, and therefore, under the statute (article 671, P. O. 1925), was prima facie evidence that he possessed it for the purpose of sale. In view of the statement first made, in effect, that appellant “was present and could testify,” we are at a loss to understand how the jury could have appropriated the subsequent argument that appellant had introduced no evidence to show that “it was not possessed for sale” other than as referring to the failure of appellant to testify in regard to the matter. It appears to bring the case clearly within the rule announced in Boone v. State, 235 S. W. 580, 90 Tex. Cr. R. 374.

We think the argument was in contravention of the statute (article 710, Revision 1925) prohibiting allusion or comment by counsel to the failure of a defendant to testify, and called for a reversal.

The state’s motion for rehearing will .be overruled. 
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