53 S.W.2d 302 | Tex. Crim. App. | 1932
Lead Opinion
Conviction is for possessing intoxicating liquor for the purpose of sale, punishment being one year in the penitentiary.
Acting under a search warrant officers went to appellant's home and found in a small rock house (called the "dairy house") near the residence five gallons of peach brandy, two gallons of cherry wine, sixty bottles of "home brew," caps and a capping machine. A chemist who made an analysis of samples of each kind of the liquor found testified that the peach brandy contained 9.6 per cent of alcohol by volume, the cherry wine 8.8 per cent, and the home brew 3.4 per cent.
It was appellant's contention that under the evidence the "dairy house" was a part of the private residence, and that evidence of what was found by the officers was inadmissible by reason of a claimed defective affidavit upon which the search warrant was predicated. Bills of exception preserving the point are brought forward. We find it unnecessary to discuss the matter on account of the evidence which went into the case from appellant's wife. She admitted the presence of the liquor testified to by the officers, saying it was made by her and appellant. She denied that any of it was kept for the purpose of sale, and said the "home brew" was for her own personal use. The jury was pertinently told that appellant could not be convicted if the liquor in question was intended for medicinal purposes or for home consumption. The same evidence which appellant sought to exclude as coming from the officers having gone into the record from appellant's own witness, he is in no position to complain. We cite only a few cases, but they will be found to collate many others. See McLaughlin v. State,
The judgment is affirmed.
Affirmed.
Addendum
Appellant files an able motion for rehearing in which he reviews to some extent the authorities deemed by him pertinent. The proposition that the illegal reception of testimony will be of no avail to the accused if it appear from the record that the same or similar testimony was admitted before the jury from other sources without objection, has been affirmed by this court almost from its creation. We have no doubt as to the soundness of the proposition. The authorities have been reviewed and discussed so often that we deem it unnecessary to again go over same. In Stone v. State,
The motion for rehearing will be overruled.
Overruled.
Addendum
Appellant earnestly insists that in the opinions affirming this conviction and overruling the motion for rehearing, this court has by construction annulled the statutory law embraced in article 671, P. C., enacted in 1923. The announcement of this court, speaking through Judge Ramsey, in the case of Wagner v. State, 53 Tex.Crim. Rep.,
Article 671, P. C., reads thus: "Wherever possession or receipt, or possession or receipt for the purpose of sale, is made unlawful by law, proof of possession of mash, or a still or any device for manufacturing intoxicating liquors, or proof of the possession of more than one quart of intoxicating liquors, shall be prima facie evidence of guilt; but the defendant shall have the right to introduce evidence showing the legality of such possession."
As stated above, the article was enacted in 1923, by section 2e, Acts of 38th Leg., 2nd Called Session, p. 54, chap. 22, and was reenacted in the revision of the statutes in 1925.
At the time article 671, supra, was enacted, there was no statute forbidding the use of evidence obtained in an illegal search. Subsequently, articles 4a and 727a, C. C. P., were passed. The effect of those two articles was to forbid the introduction in evidence, on the objection of the accused, of evidence obtained by means of a search which was illegal. Effect was immediately given to these statutory provisions by decisions of this court refusing to affirm convictions based on evidence obtained in an illegal search where objection to the evidence was properly interposed. See McLaughlin v. State,
As stated in the opinion on motion for rehearing, if the evidence of the officers who searched the appellant's premises was obtained in an illegal search and therefore not admissible against him, and there was no other evidence against him to support the charge in the indictment, there was no occasion for the appellant to introduce evidence at all; but having elected to put witnesses on the stand and make proof that he possessed a quantity of intoxicating liquor above a quart, he thereby rendered harmless the error committed in receiving the testimony of the state to the same effect. As stated in the beginning of this opinion, there will not be a reversal on appeal for the reception of evidence illegally obtained in case the same facts came, without objection, from the testimony of either the defendant or other witnesses.
For the reasons stated, the request to permit the filing of the second motion for rehearing is denied.
Overruled.