Chandler v. State

• Decision Date: 24 February 1926
• Docket Number: (No. 9774.)
• Citation: 280 S.W. 817
• Parties: CHANDLER v. STATE.
• Court: Texas Court of Criminal Appeals

280 S.W. 817

CHANDLER v. STATE.

(No. 9774.)

Court of Criminal Appeals of Texas.

February 24, 1926.

Commissioners' Decision.

Appeal from District Court, Fayette County; M. C. Jeffrey, Judge.

Charlie Chandler was convicted of unlawfully possessing intoxicating liquor, and he appeals. Affirmed.

John P. Ehlinger, of La Grange, for appellant.

Sam D. Stinson, State's Atty., of Austin, and Nat Gentry, Jr., Asst. State's Atty., of Tyler, for the State.

BAKER, J.

The appellant was convicted in the district court of Fayette county for unlawfully possessing intoxicating liquor, and his punishment assessed at two years in the penitentiary.

Briefly stated, the facts show that the officers went to the premises of the appellant, a negro, and, upon reaching the house, inquired of his wife where they could find him, to which she replied, in the back yard. The witnesses for the state testified that about that time they heard a crash, and ran around the house to the back yard, and there saw the appellant going towards the front of the house, and found a five-gallon jug, broken, with whisky on the ground. The officers testified that from the appearance of the ground there must have been about three gallons of whisky in the jug at the time it was broken, and that they dipped up some of the whisky, and it was produced upon the trial. They further testified that, upon asking appellant why he broke the jug, he laughed, and, upon inquiry, he told them that the jug was not quite full, and there were about three gallons in it at the time it was broken. The appellant's defense was that he had been working in a cotton oil mill, and that he was using the whisky for his health, and denied there being over a quart in the jug at the time he broke it. This is a sufficient statement of the facts for this opinion.

Appellant complains of the refusal of the court to exclude all the testimony of the state introduced in the case, because it was not shown that the officers at the time had a legal search warrant to search said premises. The state attempted to prove orally that the officers had a proper search warrant and what its contents were, and showed it had been misplaced on account of a change of justice of the peace since the issuing and filing of same. A sufficient answer to this contention is that, at the time of the trial and the adjournment of the term of said court, the Search and Seizure Law of the 39th Legislature, c. 149, had not gone into effect, and this contention made by the appellant could not apply to this case for that reason. Bailey Harrison v. State (No. 9711) 279 S. W. 455, delivered on January 20, 1926, yet [officially] unreported.

It is also the contention of the appellant that the court erred in permitting the state on cross-examination of his wife, if we understand the bill, to interrogate her on matters that he contends had not been brought out from her by him in chief. The court's qualification to the bill states that the cross-examination was upon subjects and matters which the appellant had brought out and put in issue by his wife's testimony on direct examination. This bill as presented shows no error. Branch's P. C. § 152.

In bill of exception No. 3, appellant complains of the action of the court in permitting the state to have Dr. Cook to refresh his memory from his books, and to show, if he could, when was the last time he had treated the appellant or had seen him. It is contended by the appellant that the state, on cross-examination, should not have been permitted to show by this witness any visits made by him to appellant's family. The court's qualification to this bill shows that when Dr. Cook, after testifying that he knew the conditions at the oil mill, and on former occasions had seen and treated the appellant, and that whisky would be good for him after he had quit work, but could not tell the dates when he had visited appellant, stated he could tell from his books, then the court permitted the district attorney to have him bring his books and show the dates. The said qualification further...