#### EWING v. STATE.

No. 26203.

Court of Criminal Appeals of Texas.

Jan. 21, 1953.

Cliff Tupper, San Angelo, for appellant.

George P. Blackburn, State’s Atty., of Austin, for the State.

WOODLEY, Judge.

The conviction is for possession of whis-ky, in Coleman County, a dry area, for the purpose of sale; the punishment a fine of $250.

Under authority of a search warrant the Sheriff of Coleman County and one of his deputies searched appellant’s home, which the Sheriff described as: “a private dwelling located at 711 West Fourth Street in the City of Coleman, Coleman County, Texas, being the first residence on the south side of West Fourth Street as one turns off of Fifth Avenue on to West Fourth Street, and being a five or six room white residence facing north.”

In the dwelling house the officers found a pint of whisky, which was in the linen closet of the' bathroom. Appellant was in this bathroom when the search was made, and the search warrant was read to him by the officers.

A further search of the premises resulted in the finding of what is referred to as “a jigger” or “about five tablespoons of whis-ky”. This whisky was in a bottle rolled in a combine canvas and was found in a shed some fifteen or twenty steps from the residence.

No question is raised as to the above described whisky and evidence in regard thereto, the search warrant appearing to have authorized the search under which it was found.

It is appellant’s contention that the evidence as to a second -pint bottle of whis-ky found by the officers in a barn “north of and across the street from the dwelling house” was not admissible.

No evidence was offered to show that appellant purposed to or had sold whisky, the state relying solely on the presumption arising from the possession of more than one quart of whisky. The total amount of whisky found by the officers was “a jigger” or “about five tablespoons” in excess of a quart. Therefore, if the testimony was inadmissible as to the finding of the pint in the barn referred to, or if the state failed to show that this pint of whisky was possessed by appellant, the conviction cannot stand.

The search warrant described the premises to be searched as follows: “ * * * a private dwelling located at 711 West 4th Street in City of Coleman, Coleman County, Texas, being the first residence on the south side of West 4th Street as one turns off 5th Avenue on to West 4th Street, being a 5 or 6 room white residence facing north, together with all automobiles, outbuildings and premises pertaining thereto, * *

*136The pint and “jigger” of whisky were found on the premises described. The barn in which the other pint of whisky was found was not on the premises located at 711 West Fourth Street, nor was it “on the south side of West 4th Street,” but was “across the street and north of” the residence.

The state’s testimony showed that appellant had been seen on two or three occasions around the horse lot and barn in question, where two horses were kept.

There is no testimony that appellant owned or controlled the lot and barn; that he owned or used the horses seen there, or that he fed or tended the stock. The pint of whisky was found in a sack of oats in such barn.

The evidence is insufficient to show that appellant had in his possession or control the horse lot or barn, or that he was in any way charged with possession of the whisky there found. It therefore becomes unnecessary for us to pass upon the question of the legality of the search of the premises on the north side of the street.

The evidence is deemed insufficient to show the possession of whisky for the purpose of sale.

The judgment is therefore reversed and the cause remanded.