Bailey v. State

Citation248 S.W.2d 144,157 Tex.Crim. 315
Decision Date27 February 1952
Docket NumberNo. 25720,25720
PartiesBAILEY v. STATE.
CourtTexas Court of Criminal Appeals

Sheffy Mahan, Childress, for appellant.

George P. Blackburn, State's Atty., of Austin, for the State.

DAVIDSON, Commissioner.

The unlawful possession of whisky for the purpose of sale is the offense; the punishment, a fine of $1,000.

Agents of the Liquor Control Board, by authority of a search warrant, searched the private residence of appellant and found therein a large quantity of whisky, beer, and other intoxicating liquors.

The sole question presented relates to the sufficiency of the search warrant and the affidavit in support therof.

It becomes of first importance to determine whether the question is before us.

Appellant filed a motion to suppress the evidence obtained as a result of the search. This motion set out the affidavit and the search warrant, and alleged other facts which appellant relied upon to show the description of the premises was such as that the premises searched could not have been located by such description. The motion does not appear to have been acted upon by the trial court.

It has been the repeated holding of this court that it is necessary to object to the introduction of testimony claimed to have been obtained as a result of an unlawful search, and that a motion to suppress such evidence is insufficient for that purpose. Harkey v. State, 142 Tex.Cr.R. 32, 150 S.W.2d 808; Cothran v. State, 143 Tex.Cr.R. 570, 156 S.W.2d 876; Anderson v. State, 146 Tex.Cr.R. 222, 172 S.W.2d 310.

Appellant presents no independent bill of exception complaining of the introduction of the testimony, but relies upon his objection to the testimony as shown in the question-and-answer statement of facts.

The state challenges consideration of such exception and, in this connection, calls attention to the fact that nowhere in the statement of facts, adduced either upon the merits of the case or upon the hearing in the absence of the jury touching the introduction of the evidence, are the affidavit and the search warrant shown.

Other than in the motion of appellant to suppress the evidence, the record does not reflect the affidavit and the search warrant upon which the search was based. The affidavit and the search warrant set out in the motion to suppress, not having been authenticated or certified by the trial court, constituted nothing more than a pleading.

In the absence of an authenticated affidavit and search warrant, appellant's objection to the testimony claimed to have been unlawfully obtained as a result of an illegal search cannot be appraised.

The judgment is affirmed.

Opinion approved by the court.

On Motion for Rehearing.

MORRISON, Judge.

Our able State's Attorney has filed herein an excellent brief. Excerpts therefrom are adopted as the opinion of this court.

'Appellant, in his motion for rehearing, apparently recognizes the deficiency of his bill of exception No. 1, in that it does not contain the search warrant complained of nor refer to any part of the record where a duly authenticated copy of it may be found. He seeks to avoid the effect of this fatal deficiency in his bill by arguing that the provisions of Article 759a, Section 1, par. C, Vernon's Annotated Code of Criminal Procedure, by its terms forbids the incorporation of the alleged defective search warrant in a bill of exceptions because a copy of a purported search warrant was copied in the clerk's transcript of the proceedings where appellant's motion to suppress evidence was set out, such motion having as an exhibit attached to it a copy of an alleged search warrant. Appellant's position seems to be that the legislative act, as he interprets it, has forbidden him to write an effective bill of exception and that, therefore, the Court should write one for him. * * *

'The State says that to construe the legislative act as contended for by appellant would make Article 759a, Vernon's Code of Criminal Procedure, inconsistent in its several provisions; that it would permit the clerk, by copying an instrument in his transcript of the proceedings, to prevent the appellant from making out a full bill of exception in many instances despite the fact that the same article of the statutes gives the parties the full control over the content of a bill of exception in Q. & A. form when such is agreed upon by the parties. * * *

'As held in the original opinion, the copy of a search warrant set out in the clerk's transcript of the proceedings as a part of appellant's motion to suppress evidence is but a pleading. It is not authentically shown to be anything other than a matter pleaded by the appellant. It is not shown by any proper method to be a true copy of the search warrant exhibited to the trial...

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5 cases
  • Barnes v. State, 36705
    • United States
    • Texas Court of Criminal Appeals
    • 25 Marzo 1964
    ...evidence in advance of proffer does not obtain in this state. Johnson v. State, 111 Tex.Cr.R. 395, 13 S.W.2d 114; Bailey v. State, 157 Tex.Cr.R. 315, 248 S.W.2d 144; Spencer v. State, 157 Tex.Cr.R. 496, 250 S.W.2d 199; Dominguez v. State, 161 Tex.Cr.R. 124, 275 S.W.2d 677; Gonzales v. State......
  • Padgett v. State
    • United States
    • Texas Court of Criminal Appeals
    • 16 Enero 1963
    ...evidence in advance of proffer does not obtain in this state. Johnson v. State, 111 Tex.Cr.R. 395, 13 S.W.2d 114; Bailey v. State, 157 Tex.Cr.R. 315, 248 S.W.2d 144; Spencer v. State, 157 Tex.Cr.R. 496, 250 S.W.2d 199; Dominguez v. State, 161 Tex.Cr.R. 124, 275 S.W.2d 677; Gonzales v. State......
  • Lee v. State
    • United States
    • Texas Court of Criminal Appeals
    • 8 Octubre 1958
    ...appears in the record before us. therefore the question of the legality of the search is not presented for review. Bailey v. State, 157 Tex.Cr.R. 315, 248 S.W.2d 144; Williams v. State, 159 Tex. Cr.R. 487, 264 S.W.2d 731 and DeLeon v. State, Tex.Cr.App., 297 S.W.2d 140. This is so because t......
  • Sykes v. State, 38743
    • United States
    • Texas Court of Criminal Appeals
    • 8 Diciembre 1965
    ...While appellant's counsel did attach to his brief as Appendix A, a copy of an affidavit and search warrant, we held in Bailey v. State, 157 Tex.Cr.R. 315, 248 S.W.2d 144, that where the record reflected an affidavit and search warrant only in a motion to suppress evidence, and the affidavit......
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