“An issue of probable cause for appellant’s search without a warrant was made before the jury—which fact distinguishes the case from the above cases cited by appellant. Such testimony was therefore admissible on the issue of probable cause, although such issue was not submitted to the jury in the charge.”
How later courts described this case
- “An issue of probable cause for appellant’s search without a warrant was made before the jury—which fact distinguishes the case from the above cases cited by appellant. Such testimony was therefore admissible on the issue of probable cause, although such issue was not submitted to the jury in the charge.”
Written by the judges who cited it.
The opinion
DISSENTING OPINION
MORRISON, Judge.
I cannot bring myself to agree with the disposition of appellant’s fourth ground of error.
This Court has said on many occasions that evidence of prior sales of liquor is admissible in cases wherein the accused is charged with possession of liquor, but that such evidence is only admissible for the purpose of showing the accused’s intent in possessing the liquor. Ybarra v. State, Tex.Cr.App., 401 S.W.2d 608 ; Davidson v. State, 161 Tex.Cr.R. 486 , 278 S.W.2d 861 ; Gilmore v. State, 159 Tex.Cr.R. 121 , 261 S.W.2d 854 ; Abston v. State, 157 Tex.Cr.R. 500 , 250 S.W.2d 214 ; Carroll v. State, 156 Tex.Cr.R. 533 , 244 S.W.2d 828 ; Morrison v. State, 155 Tex.Cr.R. 106 , 230 S.W.2d 808 ; Dodd v. State, 149 Tex.Cr.App. 278 , 193 S.W.2d 819 ; Lawson v. State, 148 Tex. *933 Cr.R. 140, 185 S.W.2d 439 ; Smiley v. State, 146 Tex.Cr.R. 342 , 174 S.W.2d 973 ; Woodruff v. State, 145 Tex.Cr.R. 324 , 167 S.W.2d 769 ; Crutchfield v. State, 144 Tex.Cr.R. 291 , 162 S.W.2d 699 ; Purselley v. State, 142 Tex.Cr.R. 535 , 155 S.W.2d 378 ; McDowell v. State, 142 Tex.Cr.R. 530 , 155 S.W.2d 377 ; Brooks v. State, 138 Tex.Cr.R. 526 , 137 S.W.2d 768 ; Balleu v. State, 128 Tex.Cr.R. 375 , 82 S.W.2d 146 ; Tubbs v. State, 124 Tex.Cr.R. 62 , 60 S.W.2d 219 ; Graham v. State, 122 Tex.Cr.R. 416 , 55 S.W.2d 826 ; Williams v. State, 119 Tex.Cr.R. 340 , 43 S.W.2d 98 ; Overman v. State, 117 Cr.R. 260, 36 S.W.2d 1021 ; Kellar v. State, 116 Tex.Cr.R. 301 , 31 S.W.2d 632 ; Kellar v. State, 115 Tex.Cr.R. 368 , 28 S.W.2d 800 ; Tate v. State, 115 Tex.Cr.R. 534 , 27 S.W.2d 808 ; Staglik v. State, 111 Tex.Cr.R. 623 , 13 S.W.2d 376 .
Failure by the court to limit such evidence to the question of the accused’s intent in possessing liquor was error. Evans v. State, 169 Tex.Cr.R. 295 , 333 S.W.2d 387 ; McGowan v. State, 158 Tex.Cr.R. 319 , 255 S.W.2d 512 ; Walker v. State, 146 Tex.Cr.R. 321 , 174 S.W.2d 974 ; Balleu v. State, supra, and Lanham v. State, 99 Tex.Cr.R. 410 , 269 S.W. 799 . See also Thomas v. State, 63 Tex.Cr.R. 98 , 138 S.W. 1018 and Scott v. State, Tex.Cr.App., 68 S.W. 680 .
I respectfully dissent.