Nailing v. State

203 S.W.2d 221, 150 Tex. Crim. 498, 1947 Tex. Crim. App. LEXIS 965

• Court: Court of Criminal Appeals of Texas
• Decided: June 18, 1947
• Docket: No. 23689
• Status: Published

Opinion

DAVIDSON, Judge.

This is a conviction for possession of material and equipment for the unlawful manufacture of intoxicating liquor, as prohibited by Sec. 1 of Art. 666-17a, P. C.; the punishment, a fine of $250.00.

In a creek-bed in a thickly wooded section, officers came upon appellant and two other parties seated around and near two wooden barrels of whisky mash, three empty barrels — two wooden and one iron — and some half-gallon fruit jars, buckets, and tubs. Upon the approach of the officers, all three of the parties fled and were not apprehended until some time thereafter. One of the parties (McAllister) lived about a quarter of a mile away. Appellant resided at Manchester, some five or six miles away.

There is no testimony as to the ownership or possession of the land upon which the material and equipment were found.

The State’s case against appellant rests upon his presence at the time and place and his flight at the approach of the officers. There is no testimony directly connecting him with the offense charged.

In submitting the case to the jury the trial court did not define the term “possession,” nor did he give to the jury any definition or facts by which the jury were to be governed in determining whether or not appellant was in possession of the material and equipment, as alleged.

Appellant excepted to the charge and presented requested charges properly defining that term.

The opinion is expressed that, under the facts here presented, the trial court erred in not responding to appellant’s request. See Wells v. State, 125 Tex. Cr. R. 201, 67 S. W. (2d) 305; English v. State, 119 Tex. Cr. R. 202, 46 S. W. (2d) 697; Andrews v. State, 106 Tex. Cr. R. 357, 292 S. W. 880.

The judgment is reversed and the cause is remanded.

The foregoing opinion of the Commission of Appeals ■ has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.