
    WHITE v. STATE.
    (No. 9683.)
    (Court of Criminal Appeals of Texas.
    Dec. 23, 1925.)
    1. Criminal law <&wkey;364(4) — Statement made while under arrest, admitting ownership of whisky, held admissible as part of res gestse.
    Statements, by one accused, of possessing intoxicating liquor for sale, made in house where liquor was found, and while under arrest, that whisky belonged to him, and that owner of house need not be taken, since he had nothing to do with whisky, held admissible as res gestse.
    
      2. Intoxicating liquors <&wkey;239(2) — In prosecution for possession for sale, charge covering possession, only, held error.
    In prosecution for possession of intoxicating liquor for sale, court erred in charge authorizing conviction for possession, only, since jury must find that possession was for purpose of sale before conviction is authorized, under Pen. Code 1925, art. 666.
    3. Criminal law &wkey;>772(6) — Defense that accused' was not owner of whisky found should be presented affirmatively.
    In prosecution for possession of intoxicating liquor for sale, defense that accused was not owner of whisky found, but claimed ownership to let another escape liability, should be presented affirmatively.
    Appeal from District Court, Hunt County; J. 'M. Melson, Judge.
    Johnie IP. White was convicted for the possession of intoxicating liquor for the purpose of sale, and he appeals.
    Reversed and remanded.
    'Crosby & Estes, of Greenville, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   HAWKINS, J.

Conviction is for the possession of intoxicating liquor for the purpose of sale; punishment is confinement in the penitentiary for one year.

Complaint is made of the overruling of appellant’s application for continuance. This question will likely not arise upon another trial, and is not discussed, as the record requires reversal upon other grounds.

Officers procured a warrant authorizing them to search the premises and residence of one Henry Jones. While on their way to execute the warrant, they found Jones some little distance from his place of residence and-took him with them. Appellant and his wife were living at Henry Jones’ place. The officers apprised appellant that their business was to search for whisky. He told them there was none upon the premises. One of the officers secured from appellant’s wife a key to a trunk which was in the house. As this officer was unlocking the trunk, the sheriff! went to the smokehouse a short distance from the residence and there found 6 gallons of whisky, which he brought into the residence with him. In the meantime the Other officer had opened the trunk and found in it 2 quarts of whisky. The sheriff asked who the whisky belonged to. In the presence of appellant, Jones said the whisky was not his; that his wife was in the sanitarium, and he had not been about home very much. Appellant then admitted the whisky belonged to him. The sheriff remarked that he would have to take both of them, whereupon appellant said it was not necessary to take Jones, as he had nothing tó do with the whisky as it belonged to him (appellant). .

Complaint is urged of thé reception in evidence of these statements of appellant upon the ground that he was under arrest. They were properly admissible 'as res gestse. Broz. v. State, 93 Tex. Cr. R. 137, 245 S. W. 707; Hill v. State, 95 Tex. Cr. R. 500, 255 S. W. 433; Bell v. State, 92 Tex. Cr. R. 342, 243 S. W. 1095.

In paragraph 2 of his charge the court told the jury it was “unlawful for any person in this state to .possess intoxicating liqr uor except for medicinal, mechanical; scientific or sacramental purposes,” and in paragraph 7, applying the law to the facts, he authorized 'conviction if appellant had whisky in his possession, ignoring in both paragraphs the necessary- element of the possession being for the purpose of sale. Proper exceptions were reserved to these charges and. .a special charge requested, which instructed the jury that, before they were authorized to convict, they must believe appellant had possession of the whisky, and also that he had it for the purpose of sale. This charge was refused.

In the respects mentioned the learned trial judge fell into error. The possession alone of intoxicating liquor is not an offense under article 666, P. C. (1925 Revision) Acts 2d Called Sess. 38th Leg., c. 22. Before such possession is an offense under our present law, it must be possessed for the purpose of sale, and this fact must be found by the jury to be true. Veasey v. State, 97 Tex. Cr. R. 299. 260 S. W. 1054; Petit v. State, 90 Tex. Cr. R. 336, 235 S. W. 579; Walden v. State, 100 Tex. Cr. R. 584, 272 S. W. 139; Newton v. State, 98 Tex. Cr. R. 582, 267 S. W. 272. The charge in the instant case authorized the conviction of appellant, regardless of his purpose in having the whisky.

Appellant’s defense seems to have been that the whisky in the trunk belonged to his wife, who had it for-medicinal purposes, and that appellant had no knowledge of the presence of that whisky; that the 6 gallons found in the smokehouse belonged to Jones; that, after the officers-reached the house, Jones requested appellant to claim the whisky on the theory that this would relieve Jones of liability; and that, because appellant was under 25 years of age, he would escape with a suspended sentence and in this way both be protected. If this defense is made upon another trial, it should under appropriate instructions, be presented affirmatively.

Por the errors in the court’s charge, the judgment must Be reversed, and the cause remanded. 
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