Booth v. State

• Decision Date: 03 October 1928
• Docket Number: (No. 11525.)
• Citation: 9 S.W.2d 1032
• Parties: BOOTH v. STATE.
• Court: Texas Court of Criminal Appeals

9 S.W.2d 1032

BOOTH v. STATE.

(No. 11525.)

Court of Criminal Appeals of Texas.

October 3, 1928.

Commissioner's Decision.

Appeal from District Court, Cottle County; J. H. Milam, Judge.

J. B. Booth was convicted of unlawful manufacture of intoxicating liquor, and he appeals. Reversed and remanded.

Bell & Bell, of Paducah, for appellant.

A. A. Dawson, State's Atty, of Austin, for the State.

MARTIN, J.

Offense, the unlawful manufacture of intoxicating liquor; penalty, two years in the penitentiary.

Operating under a search warrant, the sheriff of Cottle county, in March, 1927 searched certain premises and found thereon a complete still set up ready for operation in a dugout located in a canyon about 100 yards from a residence. In this dugout was also a quantity of mash, sugar, intoxicating liquor, etc. The testimony for the state tended to show that the still, equipment, etc., belonged to appellant, while that for the appellant was sufficient to support the conclusion that the entire equipment and liquor belonged to one Wilson, and that Wilson, instead of appellant, was the offender.

Appellant testified:

"I have a son-in-law by the name of Wilson. He was living there in that house at the time the officers came out there. His wife and baby were there also. I had sold him my teams and tools and feed and had rented him my land for 12 months; that is, for the year 1927. I was to have a room there as long as I wanted it."

Gillispie testified for appellant:

"I know a man by the name of Wilson. * * * In March of 1927 he claimed that as his private dwelling, Wilson did."

As the premises searched were in the possession and control of Wilson, as seems inferable from appellant's testimony, all his complaints with reference to the legality of the search warrant and the inadmissibility of the evidence touching the result of the search pass out of the case. An accused cannot complain because of the illegal search of the premises of another. Cornelius' Search and Seizure, par. 12; Burnett v. State (Tex. Cr.) 7 S.W.(2d) 548.

As before stated, circumstances were introduced to show that Wilson was the offender. Wilson fled the country soon after appellant's arrest. The manufacture of the liquor in question by appellant was an inference to be drawn from other facts in evidence. No direct and unequivocal evidence of his guilty connection with the operation of the still and manufacture of intoxicants appears in the record. His alleged admissions do not cover...