Opinion
No. 13060.
Delivered February 26, 1930.
1. — Intoxicating Liquor — Possessing a Still.
Where appellant contended that the still was worth three hundred dollars, that he was a poor man and unable at any time to pay that much for the still, there was no error in the exclusion of the testimony of appellant's wife, since it is not shown that the witness had any knowledge of the market value.
2. — Charge.
There was no error in refusing to charge to the effect that unless the still was located upon a certain section, or block of land, being that described in the search warrant, the jury should acquit.
Appeal from the District Court of Dallam County. Tried below before the Hon. Reese Tatum, Judge.
Appeal from a conviction for possessing a still; penalty, one year in the penitentiary.
The opinion states the case.
Art Schlofman of Dalhart, for appellant.
A. A. Dawson of Canton, State's Attorney, for the State.
Conviction for possessing a still; punishment, one year in the penitentiary.
The facts show that appellant had leased a tract of land upon which he lived. His nearest neighbor seems to have been four or five miles away. Some of appellant's children lived with him. On the occasion of a search of his premises made by officers, a still, mash and a quantity of whisky were found in an under-ground silo. This silo was connected with a tank by means of about 125 feet of hose which seems to have been buried. Appellant made statements to the officers which were admitted under the res gestae rule, and were sufficient to corroborate the proposition that the still was in his possession.
There are three bills of exception. The first of same seems to complain of the refusal of the trial court to permit testimony as to the reasonable market value of the still, apparatus, etc. It was contended that appellant was a poor man, and that he never at any time had as much as $300.00 with which to purchase such apparatus. The witness who was asked as to the reasonable market value of this still, was appellant's wife. Nothing in the record leads us to believe that said wife had qualified or that she was in possession of knowledge as to the market value of such things, and the bill shows no error.
The second bill of exception complains of the refusal of a requested charge to the effect that unless the still was located upon a certain section and block of land, being that described in the search warrant, the jury should acquit. The court properly refused to charge the jury as requested. That a line of a section of land may have run between appellant's residence and said silo which was located near by, would appear to have no effect upon the question of his guilt. The remaining bill of exception sought to have the jury told substantially as last above stated; that is, it sought to have the jury told that they could not consider the evidence as to what was found by the officers unless it was found upon the section of land described in the affidavit and search warrant. Such charge would have been wholly improper. The under-ground silo in question, in which was found the still, etc., was close by appellant's residence. A well defined path led from the house to the place where the still was. No one else lived anywhere in the vicinity. The conclusion of appellant's possession appears irresistible.
The judgment will be affirmed.
Affirmed.