Opinion
No. 25132.
January 31, 1951.
Appeal from the County Court, McCulloch County, Claude Wm. Knight, Jr., J.
No attorney on appeal for appellant.
George P. Blackburn, State's Atty., of Austin, for the State.
Appellant was charged by complaint and information with the offense of possession of whiskey for the purpose of sale in a dry area.
A jury being waived, trial was had before the court on a plea of not guilty, resulting in a judgment of conviction with punishment at a fine of $150.00 and one day in jail.
T. R. Gholson, an employee of the Texas Liquor Control Board, in possession of search warrant, entered the premises of appellant situated in a dry area. According to the statement of facts, following the overruling of an objection to the testimony regarding such search, 'Mr. Gholson was then permitted to testify that he found several bottles of intoxicating liquor on the premises and that the amount of intoxicating liquor found there was in excess of one quart.'
We find no proof in the record that the intoxicating liquor found on the premises of appellant was whiskey.
Such being the allegation of the State, in the absence of proof that appellant possessed whiskey for the purpose of sale, the conviction cannot stand.
The affidavit for search warrant includes the positive averment that the premises occupied by appellant was a place where alcoholic beverages were unlawfully possessed, sold, manufactured, kept and stored in violation of the provisions of the Texas Liquor Control Act. Vernon's Ann. P.C. art 666-1 et seq. The objection to the introduction of testimony as to the search made thereunder, and the result thereof, was therefore not error. See Harris v. State, 112 Tex.Crim. R., 15 S.W.2d 1048.
The evidence being insufficient to support the conviction, the judgment is reversed and the cause remanded.
Opinion approved by the Court.