294 S.W. 562 | Tex. Crim. App. | 1927
Lead Opinion
The offense is the unlawful possession of intoxicating liquor for the purpose of sale, punishment fixed at confinement in the penitentiary for one year.
The witness Hayes, a police officer, testified that possessed of a search warrant he searched the home of the appellant and found therein four gallons of whiskey. In addition thereto there was beer and mash. The beer was in the making. Appellant seems to have been absent at the time the house was searched, but arrived soon thereafter. The officers at the time had in custody another woman, an inmate of the house, and appellant said:
"Don't take my sister down; she hasn't got nothing to do with it; that is my stuff, and there is no use to take my sister."
Other witnesses testified that they saw the whiskey upon the appellant's premises.
We find but one bill of exceptions and in that complaint is made of the refusal of the court to grant a preliminary motion to suppress the testimony claimed to have been obtained by an illegal search. This bill, as prepared, if it could be considered as proper procedure, fails to show an unreasonable search. This court has repeatedly held that the procedure attempted was unknown to our law, but that if the evidence was illegally obtained — that is, obtained through an illegal or unreasonable *635
search — it would be proper to exclude it when it was offered. See Fowler v. State,
The evidence is sufficient. The judgment is affirmed.
Affirmed.
Addendum
In our original opinion we should not have said there was only one bill of exception in the record. Outside of the questions discussed all of them relate to complaint at receiving in evidence certain statements made by appellant, and believing them to have been properly provable as res gestae we did not discuss them. In view of appellant's motion we give attention to these bills.
Officers went to appellant's house to search for intoxicating liquor. No one was at home. Some of the officers remained inside the house and two went about a block away and waited until appellant came up in a car with another woman, whom she said was her sister. The officers went with them, or took them, to the house, where the other officers had remained. In a few minutes after the whiskey was found and in view of it appellant made the statement set out in our original opinion. The officers at the time were preparing to take both appellant and her sister with them.
Other bills complain of proof of similar statements. Objection was interposed on the ground that appellant was under arrest at the time. The statements were admitted on the theory that they were res gestae, it being so stated in the explanation to the bills. In her motion for rehearing appellant cites many cases holding that statements made by accused while under arrest are not admissible, but apparently fails to note the exception which operates to make them admissible if the statements were res gestae. We had occasion to write at some length on this question, both in the original opinion and on motion for rehearing, in Calloway v. State,
Appellant's motion for rehearing is overruled.
Overruled.
Morrow, P. J., not sitting.
