Burnett v. State

• Decision Date: 02 May 1928
• Docket Number: (No. 11548.)
• Citation: 7 S.W.2d 548
• Parties: BURNETT v. STATE.
• Court: Texas Court of Criminal Appeals

7 S.W.2d 548

BURNETT v. STATE.

(No. 11548.)

Court of Criminal Appeals of Texas.

May 2, 1928.

Rehearing Denied June 20, 1928.

Commissioners' Decision.

Appeal from District Court, San Jacinto County; J. L. Manry, Judge.

Eddie Burnett was convicted of unlawful transportation of intoxicating liquor, and he appeals. Affirmed.

W. B. Browder, of Cold Springs, and F. O. Fuller, of Houston, for appellant.

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

MARTIN, J.

The offense is the unlawful transportation of intoxicating liquor; the penalty, one year.

It was shown by witness Dora Wright that appellant brought a package to her home and left it. Shortly thereafter the sheriff of the county, operating under a search warrant, came to the house of witness Wright, and there found in the package left by appellant a quart bottle of whisky.

Bills Nos. 1 and 2 present the question of the refusal of the court to permit an answer to certain questions shown in said bills. The expected answer is nowhere set out in the bills. A bill of exception taken to the refusal of the court to permit a witness to answer a question must show what the answer of the witness would have been in order to entitle it to consideration on appeal. Massey v. State, 1 Tex. App. 569; Fletcher v. State, 69 Tex. Cr. R. 135, 153 S. W. 1135; Branch's P. C. p. 136.

Bill No. 4 is to the admission of evidence in answer to a question, which question has been set out in the bill of exception, but the answer to same admitted in evidence is nowhere shown in said bill. The bill of exception is fatally defective, as it fails to set out the evidence admitted and objected to. Burke v. State, 25 Tex. App. 172, 7 S. W. 873; Chapman v. State, 37 Tex. Cr. R. 173, 39 S. W. 113; Branch's P. C. § 210.

Complaint is made and presented in bill of exception No. 3 of the action of the court in permitting the sheriff, I. T. Patrick, to testify that he found intoxicating liquors in a sack at the private residence of Willie Wright at the time of the alleged offense of which the appellant was tried. The objection to this was that the whisky was found in a private residence searched without serving the occupants with a legal search warrant. The record shows that appellant did not live at, and was not interested in any way in, the premises searched. The right to complain because of an illegal search is a privilege personal to the injured party and is not available to any one else. Jenkins v. State (Tex. Cr. App.) 299 S. W. 642; Craft v. State, 107 Tex. Cr. R. 130, 295 S. W. 617. The objection made was not available to appellant under the facts of this record, he being a third party, and not shown to have been in any way interested in the premises searched.

Complaint is made in bill of exception No. 5 of the action of the court in permitting the sheriff to taste the liquor in the presence of the jury and testify that same was whisky, because said witness had not qualified as an expert, and it is further suggested in the brief that same was inflammatory. Such testimony may be given by a nonexpert and we see nothing in the transaction calculated to inflame the jury. They are not shown to have tasted it. The whisky may have been of the character to inflame the witness or anybody else who drank it, but it does not appear that any "inflammation" occurred of which the jury knew.

Finding no errors in the record, the judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

The state's testimony is as follows: The dwelling house in which Willie Wright, a negro, his wife, Dora Wright, and his 11 year old daughter resided was searched by Sheriff Patrick and in the house he found a quart bottle of whisky which was deposited in a sack. According to the testimony, he had information that Ed Burnett, the appellant, had placed the whisky in the house, and that upon that information he made the affidavit and obtained a search warrant. It was shown by the witness Dora Wright that the appellant brought a bottle of whisky to her house a...