Gonzales v. State

• Decision Date: 15 May 1929
• Docket Number: (No. 12566.)
• Citation: 18 S.W.2d 618
• Parties: GONZALES v. STATE.
• Court: Texas Court of Criminal Appeals

18 S.W.2d 618

GONZALES v. STATE.

(No. 12566.)

Court of Criminal Appeals of Texas.

May 15, 1929.

Rehearing Denied June 27, 1929.

Commissioner's Decision.

Appeal from District Court, Bee County; T. M. Cox, Judge.

Damacio Gonzales was convicted of possession of intoxicating liquor for the purpose of sale, and he appeals. Affirmed.

W. T. Scarborough, of Kenedy, for appellant.

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

CHRISTIAN, J.

The offense is possession of intoxicating liquor for the purpose of sale; the punishment confinement in the penitentiary for one year.

Officers searched appellant's residence and found therein a large quantity of intoxicating liquor. On the trial of the case the court determined that the search warrant was void, but reached the conclusion that appellant consented to the search. Timely objection was interposed to the testimony of the officers touching the result of the search on the ground that the search warrant was void. In the absence of the jury one of the officers testified that when they went to the door of appellant's dwelling he invited them in; that they saw a bottle of whisky and beer bottles on a table in the room they entered, and stacks of beer cases along the wall; that he, the officer, picked up the bottle of whisky and said to appellant, "I am an officer and want to search your place;" that appellant replied, "All right;" that he did not tell appellant, at the time he told him he wanted to search his place, that he was armed with a search warrant; that he delivered a copy of the search warrant to appellant after appellant had stated that it was all right for him to search the place. We are of the opinion that the language used by appellant was sufficient to show a waiver, and sustain the action of the trial court in admitting the testimony of the officers. One may consent to the search of his premises, and thereby waive irregularities in the search warrant, or dispense with the search warrant altogether. Hall v. State, 105 Tex. Cr. R. 365, 288 S. W. 202; Williams v. State (No. 11,976) 17 S.W. (2d) 56, delivered November 14, 1928, and not yet [officially] reported.

In his argument to the jury the district attorney used language as follows: "The law steps in and says: `Damacio Gonzales, I hold that your possession of this liquor is for the purpose of sale, but you can dispute that and show that your possession was a lawful one; do it by witnesses; yes, sir.' The record is as silent as the tomb as to any rebutting evidence, but, on the contrary, gentlemen, when you study the situation as it existed there, the presence of so much beer and whisky, the little table and the guest there, the empty glasses on the table, empty beer bottles, the whisky showing use from the bottles, why, you are led, gentlemen of the jury, as reasonable men, to the irrefutable conclusion, irrespective of the presumption of the law, that this man had that liquor there unlawfully,...