4 S.W.2d 54 | Tex. Crim. App. | 1928
Lead Opinion
Conviction is for possessing intoxicating liquor for the purpose of sale. The punishment is two years in the penitentiary.
The search of appellant's house was made under a warrant predicated upon an affidavit based solely upon the "belief" of affiants, there being no statement in the affidavit of the facts or information upon which such belief was founded. Such being the case objection should have been sustained when the *308
state offered to prove the result of the search. Chapin v. State, 107 Tex.Crim. Rep.,
"It is well settled in this state that the erroneous admission of testimony is not cause for reversal if the same fact is proven by other testimony not objected to. See Rogers v. State, 26 Tex.Crim. App. 404; Walker v. State, 17 Tex.Crim. App. 16; Johnson v. State,
Later cases following Wagner are Gurski v. State,
The judgment is affirmed.
Affirmed.
Addendum
Appellant insists that if his objection was good when made to the testimony of officers as to what *309
they found in his place by a search under a defective warrant, then we erred in holding that the error of such admission was rendered harmless by his thereafter taking the witness stand and affirming as true that the officers found what they said they did on his premises. He cites a number of authorities, all of which we have carefully examined. Dawson v. State,
"We can see no injury that was done by the admission of this evidence. The same facts had already been testified to by two witnesses, and allowed to go to the jury without objection."
So, also in Walker v. State, 17 Tex.Crim. App. 16. In Johnson v. State,
"Whether the court erred, or not, in admitting the statement of Johnson, is immaterial in the consideration of this case, because the appellant himself took the stand in his own behalf, and testified substantially to the same facts."
The opinion preceding this one in the book was written by the writer of the opinions in the Moore and Brown cases, supra. In Stephens v. State,
"This evidence was properly admitted. But, if not, the appellant took the stand, and on his direct examination testified to the same evidence, and reiterated it on cross-examination."
In Rogers v. State, 26 Tex.Crim. App. 404, it is said:
"The objections to this testimony were that the ownership of Mary Gandy must be proved by deed or other written evidence of title, and that Skipper's testimony as to her ownership was merely hearsay. It is a sufficient answer to this supposed error to say that the ownership of Mary Gandy of the house in question is sufficiently established by other testimony adduced on the trial without objection on the part of the defendant."
Numerous opinions of this court from the date of the above down to the present might be cited, all holding in line with what we have here said. If anything in the opinions in the Moore and Brown cases, supra, is contrary to the opinion here expressed, same will be overruled.
The motion for rehearing is overruled.
Overruled.