Comeaux v. State

• Decision Date: 27 May 1931
• Docket Number: No. 14173.,14173.
• Citation: 42 S.W.2d 255
• Parties: COMEAUX v. STATE.
• Court: Texas Court of Criminal Appeals

42 S.W.2d 255

COMEAUX v. STATE.

No. 14173.

Court of Criminal Appeals of Texas.

May 27, 1931.

Rehearing Denied October 7, 1931.

Commissioners' Decision.

Appeal from Criminal District Court, Jefferson County; R. L. Murray, Judge.

Walter Comeaux was convicted of possessing intoxicating liquor for the purpose of sale, and he appeals.

Affirmed.

Baldwin & McDougald and Fletcher S. Jones, all of Beaumont, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CALHOUN, J.

Offense, possession of intoxicating liquor for the purpose of sale; punishment, confinement in the penitentiary for two years.

Operating under a search warrant, the officers first searched a house located at 1700 Brooklyn street in the city of Beaumont, where the appellant, Walter Comeaux, lived, but did not find anything in the house. The evidence shows that they next searched the garage or outhouse right back of said house; that the said garage or outhouse was between forty and fifty feet back of the house on the same premises, and that a family lived upstairs over it; that in one side of said garage downstairs there was nothing; that on the other side there was a bunch of hay and empty barrels; that one side was nailed up; that there was a big coop sitting there right in front of the building; that the place was nailed up and that the officers pulled a plank off that was nailed and found a bunch of half gallon fruit jars of whisky wrapped up in paper sacks; that they found approximately forty gallons; that they examined said liquor to see what it was and that it was red intoxicating whisky; that after they had found the whisky, the appellant came up on the premises driving a Ford coupé; that the officers did not arrest the appellant at that time, which was Saturday evening; that they did not arrest him until Monday morning. The testimony further shows that when the appellant drove up, one of the officers said to him, "Walter, I thought you had quit bootlegging." He answered, "I did, but I started up about two or three weeks ago." He stated in answer to question by the officers that if they had come to said premises that night or the next day that he would not have had that much whisky. He was asked whose whisky it was, and he stated that it was his whisky.

The appellant did not testify nor offer any affirmative defensive matter.

Bill of exception No. 1 shows that appellant objected to the testimony of the officers touching the result of the search for the reason that said search warrant only directed the said officers to search the private residence of appellant and not the garage or outhouse. We think the objection was properly overruled.

The affidavit for search warrant, which was sworn to by W. W. Richardson and J. F. Edington, was substantially as follows:

"That on the 9th day of August, A. D., 1930, there was and is now, before the making and filing of this affidavit in writing, a certain place and premises, situated in Jefferson County, Texas, described as follows, to-wit:

"A private residence No. 1700 Brooklyn Street, City of Beaumont, Jefferson County, Texas, the same being occupied and used by Walter Comeaux and others, as a private dwelling.

"That on the said 9th day of August, A. D., 1930, the said Walter Comeaux was then and there, and is now, before the making and filing of this affidavit in writing, unlawfully manufacturing, keeping and possessing for the purpose of sale, and selling in the said place and premises, intoxicating liquors.

"That the said Walter Comeaux in the said place and premises, was then and there and is now keeping and using, in the unlawful manufacture, possessing and keeping for the purpose of sale, and sale of the said intoxicating liquors, certain stills, coils, barrels, bottles, jugs, containers, malt, chops, syrup, pipes and capping machines. * * *

"That the facts, circumstances and statements mentioned and set out in this affidavit in writing are, within the knowledge of the affiants true and correct, and that the affiants obtained their evidence and knowledge of the same as follows, to-wit:

"Several reputable citizens have reported to us that they have seen persons going into said house sober and coming out under the influence of intoxicant liquor and intoxicating liquors is being kept and sold there.

"Wherefore, affiants ask that a warrant to search the above described place and premises, and to seize said intoxicating liquors, and the said stills, coils, barrels, bottles, jugs, containers, malt, chops, syrup, pipes and capping machines, * * * in the said place and premises, be issued forthwith, and that a warrant for the arrest of the said Walter Comeaux, be forthwith issued, in accordance with law in such cases provided."

The search warrant followed the same description and authorized the search of the residence described, as well as the premises. There seems to be no doubt from the record that the premises in question consisted of a residence and also a garage or outhouse, where the whisky was found, situated on the same lot approximately forty to fifty feet back of said residence, and according to the state's witnesses, appellant stated that the whisky found in said out building was his. We think that the description in the affidavit included the garage or outhouse searched by the officers.

Bill of exception No. 2 preserves an objection to the testimony of the officers that the appellant stated to said officers that he had been running for about three weeks after the witness Hamman had told him that he thought he had quit bootlegging. Appellant's objection was based on the ground that the witness Hamman had testified that he went there with the intention to arrest appellant, and that the peace officers, Hamman and Edington, had a warrant for appellant's arrest, and that although they did not take physical custody of appellant at that time, Hamman and Edington had testified that it was their intention to arrest him, but that in fact said appellant was then and there under arrest at the time such statement was made, and that such statement was not part of the res gestæ.

Sufficient evidence is not incorporated in the bill to verify the truth of appellant's objections. The statement contained in the bill that the testimony could not be considered as a part of the res gestæ because the same was long after the commission of the offense, if any, by the appellant, constitutes a mere statement of a ground of objection. It is not shown by said bill that appellant was actually under arrest, nor that at the time appellant made the statement that he thought or considered that he was under arrest. A mere statement of a ground of objection in a bill of exception is not a certificate of the judge that the facts which form the basis of the objection are true. It merely shows that such objection was made. See Branch's P. C. § 209; Edelen v. State, 103 Tex. Cr. R. 562, 281 S. W. 1078; Buchanan v. State, 107 Tex. Cr. R. 559, 298 S. W. 569. The bill not being sufficient to enable us to determine whether the trial court committed error in admitting the testimony, we must presume that the court's ruling was correct.

Bill of exception No. 3 complains of the action of the court in refusing to give to the jury appellant's instruction to find the appellant not guilty for the reason that the undisputed evidence disclosed that no intoxicating liquor was found in the private residence of the appellant on the 9th day of August, 1930. It is unnecessary for us to discuss this bill of exception further than to say that our discussion of bill No. 1 is applicable to this bill.

By bill of exception No. 4 appellant complains of the refusal of the court to give a special instruction requested by appellant upon circumstantial evidence. The evidence is direct that appellant admitted to the officers that the forty gallons of whisky found by them was possessed by him and that he had been bootlegging (or had "started up") about two or three weeks. This was prima facie evidence that appellant possessed the liquor...