Corrisco v. State

301 S.W.2d 144, 164 Tex. Crim. 515, 1957 Tex. Crim. App. LEXIS 2172

• Court: Court of Criminal Appeals of Texas
• Decided: April 17, 1957
• Docket: No. 28,906
• Status: Published

Opinion

MORRISON, Presiding Judge.

The offense is the possession of beer in a dry area for the purpose of sale; the punishment, 90 days in jail and a fine of $500.00.

Armed with a search warrant, the officers searched the appellant’s home and found a quantity of beer which was less than the quantity required to raise the legal presumption that he possessed it for the purpose of sale. The state is therefore relegated to the proof as to the beer found outside the residence in order to support this conviction.

Our able state’s attorney has confessed error herein, and we agree. The officers testified that they found some twelve additional bottles of Jax beer in “gunny sacks” approximately 250 yards from the appellant’s house and fifteen steps from a fence which separated the pasture where the sacks were found and a paved road. We fail to find anything further in the record which indicates that the appellant had possession of the beer found in the pasture save that it was the same brand.

The pasture was not shown to be a part of the curtelage of the appellant’s home. The officers testified that they found no gate leading from the appellant’s home through the fence into the pasture.

Finding the evidence insufficient to support the conviction, the judgment is reversed.