Humphreys v. State, 13482.

• Decision Date: 08 October 1930
• Docket Number: No. 13482.,13482.
• Citation: 31 S.W.2d 631
• Parties: HUMPHREYS v. STATE.
• Court: Texas Court of Criminal Appeals

31 S.W.2d 631

HUMPHREYS v. STATE.

No. 13482.

Court of Criminal Appeals of Texas.

October 8, 1930.

Appeal from District Court, Cottle County; Isaac O. Newton, Judge.

Teder Humphreys was convicted of having possession of intoxicating liquor for purpose of sale, and he appeals.

Reversed and remanded.

Joe D. Bell, of Paducah, for appellant.

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

HAWKINS, J.

Conviction is for possessing intoxicating liquor for the purpose of sale, punishment being one year in the penitentiary.

Only one bill of exception is in the record. It reflects the following: Appellant's conviction was obtained upon the testimony of the sheriff and two of his deputies. The sheriff was the first witness. He testified that he and his deputies were across the alley thirty or forty feet from appellant's house at night and saw her in her back yard some ten or twelve feet from the back door of her dwelling house. At this point appellant objected to any testimony as to finding whisky or other articles at or near the residence because it was the private dwelling of appellant and her family, and the officers had no warrant authorizing the search. The jury was withdrawn and the following facts developed: The officers went to the point heretofore mentioned and watched appellant's residence; they heard bottles rattling and saw her bury them in the dirt ten or twelve feet from the back door of the dwelling. They could not tell what was in the bottles, but had information that she had been "bootlegging." Upon the discoveries mentioned, one of the officers remained on watch and two returned to town and secured a search warrant. Neither the warrant nor affidavit therefor was produced at the trial. The evidence regarding them is quoted from the bill, which sets out the sheriff's testimony relative thereto: "This search warrant was turned over to the grand jury. I have made a search for the warrant but I do not have it. I have asked Mr. Crump —the justice of the peace who issued it— about it and he told me he had it and it was later turned over to the grand jury. I have not looked in the grand jury papers, or made any further search for it than as above stated." The bill then certifies substantially that no further evidence was offered as to the affidavit and warrant being lost, and no further evidence was offered showing or tending to show that any further search for the affidavit and warrant had been made. Appellant then renewed his former...