Hodge v. State

• Decision Date: 05 October 1927
• Docket Number: (No. 10976.)
• Citation: 298 S.W. 573
• Parties: HODGE v. STATE.
• Court: Texas Court of Criminal Appeals

298 S.W. 573

HODGE v. STATE.

(No. 10976.)

Court of Criminal Appeals of Texas.

October 5, 1927.

Commissioners' Decision.

Appeal from District Court, Titus County; R. T. Wilkinson, Judge.

Thomas Hodge was convicted of possession of intoxicating liquor for purpose of sale, and he appeals. Affirmed.

Seb F. Caldwell, of Mt. Pleasant, for appellant.

Sam D. Stinson, State's Atty., and Robt. M. Lyles, Asst. State's Atty., both of Austin, for the State.

CHRISTIAN, J.

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

The record shows that a warrant for the search of appellant's residence had been issued and placed in the hands of the deputy sheriff. The affidavit upon which the search warrant was issued was made upon information and belief, and no grounds showing probable cause were exhibited therein. Under the holding of this court in the case of Chapin v. State (Tex. Cr. App. No. 10,670) 296 S. W. 1095, delivered on June 22, 1927, and not yet [officially] reported, the search warrant was invalid. The officer, armed with this search warrant, searched appellant's barn, where he found 60 bottles of beer and a 10-gallon jar of beer. He also found in the barn 75 empty bottles. The record does not disclose whether the 60 bottles of beer and 75 empty bottles were hidden from the view of the officer, but does show that the 10-gallon jar of beer was hidden in cotton seed. The record further does not show the proximity of appellant's barn to his residence. The officer testified, in substance, that he saw somebody go to and come from the barn; that the appellant and two men were in the barn, and that some men were in the door; that the men were drinking beer; and that two or three of the men were intoxicated. The record does not disclose whether the door of the barn was open or closed, and furthermore does not show whether the officer saw the men drinking beer by looking through the door. The testimony of the officer further shows that there was a plain road beaten out to appellant's house which had been used a great deal, and that this road showed that parties would drive up in appellant's yard and turn around and go back into the main road.

It is shown by several bills of exception that appellant objected to the testimony touching the results of the search of his barn on the ground that the information obtained by the officer was through an illegal search and seizure, and that the evidence could not be admitted under the provisions of article 727a, C. C. P. The trial court overruled the objections and admitted the testimony.

Appellant's bills of exception complaining of the admission of the testimony of the officer embody substantially the facts hereinbefore set forth. The record shows that the officer saw men drinking beer in appellant's barn under circumstances which would create within him the reasonable belief that appellant was committing a felony. The record does not show from what position the officer saw the parties drinking in appellant's barn, nor does it show whether the 60 bottles of beer and 75 empty bottles...