61 S.W.2d 110 | Tex. Crim. App. | 1933
Lead Opinion
Conviction for possessing intoxicating liquor for purposes of sale; punishment, one year in the penitentiary.
A quantity of whisky was found near appellant’s house, and there was a path leading from said house to the place where the liquor was buried. While the officers were on the premises, the wife of the appellant went into the house. The officers presently observed liquid running on the ground at the house and they secured about a half pint of it, and it was also found to be whisky. They did not see who was pouring it out, but said if the wife of appellant did not pour it out they did not know who else could have done so. No one else was observed in the house but appellant’s wife. The officers had a search warrant.
There are six bills of exception. The first complains of the refusal of the court to quash the indictment. No facts appear in the record supporting appellant’s attack upon the manner and method of the return, of the indictment. The averment that nine members of the grand jury did not concur in the return of the indictment, does not support itself. There must be an affirmative showing in support of such proposition, before this court can uphold it.
The second complaint is of the insufficiency of the testimony. We have no doubt of there being enough testimony in the record to justify the finding of the jury. The third bill of exception complains of the overruling of the motion for new trial in which complaint was made of matters of procedure already complained of. The court did not err in overruling the motion.
We think the witnesses who testified to the fact that the liquid found was whisky, were qualified to so testify and that complaint of this matter is unavailing. Appellant’s motion to continue was properly overruled.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
Rehearing
ON MOTION FOR REHEARING.
As the evidence is understood, two peace officers, possessed of a search warrant, went to the home of the appellant and his wife and searched the premises. At the time of the arrival of the officers, the appellant and his wife were sitting out in the yard. The wife went hurriedly into the house, and shortly thereafter the officers observed whisky pouring out of the house and on the ground. About half a pint of whisky was recovered. The officers expressed the opinion that the amount of whisky upon the ground
On cross-examination, apparently in reply to a question by the appellant’s counsel, Officer Bradley testified: “I did not open up the whisky, but know it was whisky because the defendant said it was whisky.”
Neither appellant nor his wife testified, but by circumstances undertook to advance the theory that the jars and their contents were not upon the premises under the control of the appellant. There was testimony that the path went further than .to the potato patch. The evidence is deemed sufficient to justify the conclusion of the jury that the whisky was found upon the premises under the control of the appellant.
Article 393, C. C. P., 1925, reads as fdllows: “When the indictment is ready to be presented, the grand jury shall go in a body into open court, and, through their foreman, deliver the indictment to the judge of the court. At least nine members of the grand jury must be present on such occasion.”
It appears from the record that the grand jury came into open court and presented an indictment in the following language: “Be it remembered on this the 25th day of June 1932 there appeared the Grand Jury in open court, a quorum thereof being present, and through their foreman presented into open court the following felony indictments which was by the Court received and the. Clerk ordered to issue proper process thereon as follows, to-wit: ― vs ― No. 2690-B, The State of Texas vs ________ Poss. Int. L.”
As understood, such entry appearing upon the minutes is sufficient. See Malloy v. State, 35 Texas Crim. Rep., 389, and cases cited, wherein it appears that the nature and name of the offense is not essential.
There was no error in refusing to instruct a verdict of not guilty; nor does the overruling of the motion for new trial present any matter which would justify this court in overturning the verdict.
The law is well settled that when a juror, on his voir dire examination, fails to give correct information with reference to whether he was a householder in the county or freeholder
The motion for rehearing is overruled.
Overruled.