Opinion
No. 21949.
Delivered February 18, 1942.
1. — Intoxicating Liquor — Evidence — Possession.
In prosecution for possessing beer for the purpose of sale, evidence that officers found two unbroken cases of beer, each containing twelve cans, together with one or more cans in ice box at defendant's house, held insufficient to sustain conviction, though uncontradicted, in the absence of any evidence that each can contained as much as twelve ounces of beer or any indication whatsoever of the size of the cans.
2. — Intoxicating Liquor — Possession — Statute.
The statute requiring proof of the possession of as many as 24 bottles of beer, each containing 12 ounces, to raise the presumption that it is for sale, must be strictly complied with.
Appeal from County Court of Upshur County. Hon. Sid Buie, Judge.
Appeal from conviction for possessing beer for the purpose of sale; penalty, confinement in jail for fifteen days.
Reversed and remanded.
The opinion states the case.
McIntosh Duncan, of Gilmer, for appellant.
Spurgeon E. Bell, State's Attorney, of Austin, for the State.
Mrs. Bill Case was charged with the offense of having in her possession beer for the purpose of sale and was assessed a penalty of fifteen days in jail.
The statement of facts show that officers went to her house on or about the 7th day of June, 1941, with a search warrant and found two unbroken cases of beer, each containing twelve cans, together with one or more cans in the ice box. This fact was presented by the State and appellant did not testify and offered no evidence in her behalf.
It is noted that there is no evidence showing that the cans contained as much as twelve ounces of beer and no indication whatever of the size of the cans. Under this state of fact we are unable to sustain the jury's verdict. Article 667, Sec. 25 (b) Penal Code, provides that possession of as much as twenty-four bottles of beer, each containing twelve ounces, shall constitute the presumption that it is for sale. We think a strict compliance with the statute is necessary.
There are other questions in the case of a nature which may not be considered in the manner presented. The bill of exception presenting error in the introduction of evidence of the officers in its present form will not be sustained.
The judgment of the trial court is reversed and the cause remanded.