Dixon v. State

• Decision Date: 01 February 1928
• Docket Number: (No. 11255.)
• Citation: 2 S.W.2d 272
• Parties: DIXON v. STATE.
• Court: Texas Court of Criminal Appeals

2 S.W.2d 272

DIXON v. STATE.

(No. 11255.)

Court of Criminal Appeals of Texas.

February 1, 1928.

Appeal from District Court, Angelina County; C. C. Hodges, Judge.

J. J. Dixon was convicted of possessing intoxicating liquor for purposes of sale, and he appeals. Reversed and remanded.

J. J. Collins and R. C. Musslewhite, both of Lufkin, for appellant.

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

LATTIMORE, J.

Conviction for possessing intoxicating liquor for purposes of sale; punishment, two years in the Penitentiary.

The facts disclosed by the record amply supported the judgment of guilty.

The record contains 16 bills of exception. The first sets out an objection made to the testimony of the sheriff to the effect that he found 7 gallons of liquor and 129 bottles of beer in appellant's house; the objection being that said articles found were in the possession of the sheriff and should have been produced before the jury, and that his testimony was secondary evidence. We do not agree with this contention. We do not think the man who testifies that he found a horse must produce the horse before the jury before his testimony will be received.

In his second bill of exceptions appellant makes the point that the testimony of the finding in his house of certain liquor was objectionable because the search warrant under which the officers were operating was not issued in compliance with law, in that the affidavit upon which said search warrant was based was defective and insufficient for the reason that same merely stated that the affiants had good reason for believing and did believe that defendant possessed intoxicating liquor, and did not state the facts. This bill of exceptions, in common with others in the record, is approved with the following statement:

"Examined, found correct, and approved by me and ordered filed as a part of the record in this cause on this the ____ day of July, A. D. 1927; but the facts recited are not approved as true except as reflected by the record."

A bill of exceptions so approved imposes a great burden upon this court, and one that it has expressly declined to assume when imposed by the parties. Such a qualification compels this court to search through the statement of facts and the other parts of the record in order to ascertain whether the facts stated by the appellant in the bill of exception are true or not. Such practice, if uniformly adhered to, would entirely nullify the rules of this court requiring that the facts upon which the appellant relied to demonstrate the error of a bill of exceptions, should be set out, otherwise the bill would be held insufficient. It is to be earnestly...