Boortz v. State

• Decision Date: 24 October 1923
• Docket Number: (No. 7598.)
• Citation: 255 S.W. 434
• Parties: BOORTZ v. STATE.
• Court: Texas Court of Criminal Appeals

255 S.W. 434

BOORTZ v. STATE.

(No. 7598.)

Court of Criminal Appeals of Texas.

October 24, 1923.

Appeal from District Court, Washington County.

John Boortz was convicted of manufacturing intoxicating liquor, and he appeals. Affirmed.

W. J. Embrey, of Brenham, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

HAWKINS, J.

Conviction is for manufacturing intoxicating liquor. Punishment, one year in the penitentiary.

Appellant sought to have the indictment quashed on many grounds set out in his motion. Without taking the time to state the various objections urged we think it sufficient to say all of the questions raised have been settled against his contentions. The general form of the indictment is practically the same as that upheld in Travinio v. State, 92 Tex. Cr. R. 140, 242 S. W. 242. Other contentions have been overruled in Ex parte Gilmore, 88 Tex. Cr. R. 529, 228 S. W. 199; and the Chandler Cases from this state sustained by the Supreme Court of the United States (see 260 U. S. 708, 43 Sup. Ct. 247, 67 L. Ed. ___). Evans v. State, 91 Tex. Cr. R. 646, 241 S. W. 147; Ex parte Mitchum, 91 Tex. Cr. R. 62, 237 S. W. 936; Stringer v. State, 92 Tex. Cr. R. 46, 241 S. W. 159; Mullins v. State, 93 Tex. Cr. R. 474, 247 S. W. 285.

The court committed no error in refusing to submit the issue of suspended sentence. The application therefor recited that appellant was more than twenty-five years of age. Davis v. State, 93 Tex. Cr. R. 192, 246 S. W. 395; Hooper v. State (Tex. Cr. App.) 250 S. W. 694.

Complaint is made that the affidavits for search warrant, and the warrant issued thereunder are void for many alleged irregularities. The opinions in Welchek v. State, 93 Tex. Cr. R. 271, 247 S. W. 524; Harris v. State, 93 Tex. Cr. R. 349, 248 S. W. 54; Bell v. State (Tex. Cr. App.) 250 S. W. 177; Forester v. State (Tex. Cr. App.) 250 S. W. 1027—render these objections unavailing. The search warrant and affidavits should not have been read in the presence of the jury. An issue might arise in some case where they would become admissible, but usually an inspection of them by the trial judge would enable him to pass upon any legal question raised relative thereto. Gurski v. State, 93 Tex. Cr. R. 612, 248 S. W. 353; Bryant v. State (Tex. Cr. App.) 250 S. W. 169. We hold however that under the facts proven and the minimum penalty inflicted this error does not call for a reversal. Gurski v. State, supra.

By bills of exception four, five and six, appellant complains of the introduction of certain equipment found in his house, and the evidence in reference thereto because the parties making the search and testifying about the same were operating under an insufficient search warrant. The authorities cited under the preceding paragraph of our opinion dispose of this contention.

While the officers were searching the house and after portions of the apparatus for manufacturing whisky had been discovered, one of the officers started up in the attic. In some way appellant reached the attic first and was trying to break some bottles or containers having whisky in them. When the officer caused him to cease his effort he told the officer he would give him five hundred dollars not to take them downstairs. Objection was made to proof of the statement to the officer on the ground that appellant was under arrest and that the evidence objected to was inhibited under the statute (article 810, C. C. P.). If his statement to the officer was inadmissible so likewise was evidence of his conduct. We think both were properly provable under the rule of res gestæ. Broz v. State, 93 Tex. Cr. R. 137, 245 S. W. 707; Stanton v. State (Tex. Cr. App.) 252 S. W. 519. In Hill v. State, No. 7484, 255 S. W. 433, this day decided, the following language was quoted with approval from Ward v. State, 41 Tex. 613:

"Where a person does any act material to be understood, his declarations made at the time of the transaction, and expressive of its character, motive, or object, are regarded as verbal acts indicating a present purpose and intention, and are therefore admitted in proof like other material facts,"

— and then followed such quotation with the statement that:

"Such declarations are a part of the res gestæ and are admissible either for or against the accused."

Many authorities are cited in Hill's Case (supra) supporting the principle announced. Bronson v. State, 59 Tex. Cr. R. 17, 127 S. W. 175, recognizes the rule that a res gestæ statement made by accused is admissible as such notwithstanding it would be inadmissible as a confession, since "res gestæ" is independent of, and cannot be restricted or limited to the rules relating to confessions or admissions made after arrest. See, also, ...