Broyles v. State

• Decision Date: 23 May 1928
• Docket Number: (No. 11191.)
• Parties: BROYLES v. STATE.
• Court: Texas Court of Criminal Appeals

7 S.W.2d 555

BROYLES v. STATE.

(No. 11191.)

Court of Criminal Appeals of Texas.

May 23, 1928.

Rehearing Denied June 20, 1928.

Appeal from District Court, Eastland County; Elzo Been, Judge.

Marshall Broyles was convicted of transporting intoxicating liquor, and he appeals. Affirmed.

V. L. Shurtleff, of Breckenridge, and Chastain & Judkins, of Eastland, for appellant.

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

LATTIMORE, J.

Conviction for transporting intoxicating liquor; punishment, three years in the penitentiary.

In appellant's brief, he urges that the affidavit for search warrant, as well as the warrant itself, were erroneously introduced in evidence. Twenty-six bills of exception were reserved, ten of which appear in this transcript. From same it is clear that appellant was objecting to the use of testimony as to what the officers found in appellant's car, upon search thereof, under a warrant issued upon the affidavit referred to. From bills of exception Nos. 7 and 8 we learn that the affidavit and the warrant issued on same were introduced "for the purpose of showing that the evidence against the defendant had been legally obtained," and "as justification for the search which the officers made of the defendant's automobile which resulted in the discovery of 22 half gallon jars of whisky, which the state offered in evidence against the defendant." This presents a very different state of facts from what appears in Bryant v. State, 94 Tex. Cr. R. 67, 250 S. W. 169, and Gaunce v. State, 97 Tex. Cr. R. 365, 261 S. W. 577, which are cited by appellant in his brief. In the Bryant Case we held the introduction of the affidavit for search warrant erroneous, saying in the opinion: "There is no issue discerned by us upon which the search warrant or the affidavit was relevant." So, also, in the opinion in the Gaunce Case, supra, we said: "We perceive from the record no issue upon which the contents of the search warrant were relevant." When evidence of the result of a search by officers is objected to, as appears from bill of exceptions No. 25 herein, on the ground that the affidavit and the warrant were insufficient in law and were null and void, the validity of said documents becomes an issue, and such affidavit and warrant of necessity are material to the determination of such issue. Such issue ordinarily is for the court and not the jury. Chorn v. State, 107 Tex. Cr. R. 521, 298 S. W. 290; Henderson v. State (Tex. Cr. App.) 1 S.W.(2d) 300; Skiles v. State (Tex. Cr. App.) 2 S.W.(2d) 436.

The record before us suggests no improper use of such documents in argument or otherwise, and same seem to have been introduced only for the purpose of making it appear to the trial court primarily, and to this court on appeal, that the search was or was not justifiable and the matters found, admissible. In Gurski v. State, 93 Tex. Cr. R. 614, 248 S. W. 353, notwithstanding we said there appears nothing in the record which made said evidence admissible (the use of the word "inadmissible" in said opinion is a misprint), yet introduction of the affidavit was held harmless; the case being fully made out by other testimony than that of the affidavit. It might not be amiss to further note that no objections were made in this case to the introduction of either the warrant or the affidavit on the ground that same was hearsay.

Objection was also made to testimony elicited from appellant while a witness that he had been convicted in the federal court in 1920, and fined for possession of equipment and ingredients for the manufacture of alcoholic liquors. From the bill presenting this complaint, it appears that the court told the jury not to consider this testimony, but, unless something was before the court which does not here appear, this instruction was an error in favor of the accused. The possession of such equipment may be punishable under the federal statute by imprisonment for two years; and an offense with an alternative punishment of confinement in the penitentiary is, under our statutes, a felony, and it was permissible to ask appellant while a witness if he had not been so convicted.

The court below fully charged on the defense interposed, viz., that appellant was transporting the liquor in question for medicinal purposes, and we regard the charge as one most favorable to appellant, and find nothing in bills of exception Nos. 21, 22, and 23 relating to the refusal of special charges and the exceptions taken to the main...