Luera v. State, 15952.

• Decision Date: 07 June 1933
• Docket Number: No. 15952.,15952.
• Citation: 63 S.W.2d 699
• Parties: LUERA v. STATE.
• Court: Texas Court of Criminal Appeals

63 S.W.2d 699

LUERA v. STATE.

No. 15952.

Court of Criminal Appeals of Texas.

June 7, 1933.

Rehearing Denied October 25, 1933.

Commissioners' Decision.

Appeal from District Court, Dallam County; Reese Tatum, Judge.

Juan Luera was convicted of the possession of intoxicating liquor for the purpose of sale, and he appeals.

Affirmed.

Art Schlofman and Jno. H. Merchant, both of Dalhart, for appellant.

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

CALHOUN, Judge.

Possession of intoxicating liquor for the purpose of sale is the offense; punishment, five years in the penitentiary.

Peace officers searched the residence of the appellant under a search warrant, and at the time the house was searched the evidence showed that the appellant and a Mexican known as "Shorty" were there, and also four or five white boys, who were drinking beer. It was shown that the appellant's premises consisted of a house, part of which was sometimes used as a dance hall and part of which was occupied by the Mexican called Shorty and prior to that time had been occupied by two other Mexicans. The part occupied by the parties other than the appellant was cut off from that part of the premises occupied by the appellant. The state's evidence showed that the place where the white boys were drinking beer was in that part of the house occupied and used by the appellant and his family as their place of residence. The testimony of the officers showed that at the time they went into the house of the appellant he was washing bottles over at a sink in the room where the others were. The officers went in an ice box in said room and found a half gallon of whisky and fourteen bottles of beer. The officers also found in said room a pint bottle with some whisky in it, and in the confusion the Mexican called Shorty got out of the door and ran off.

The appellant did not testify in his own behalf, but his wife and several of his relatives testified to the effect that the appellant had never manufactured any liquor since he had been warned by the officers a few months before not to do so and at no time had he ever sold any liquor and the liquor found there did not belong to the appellant.

By bill of exception it is shown that in appellant's motion for new trial complaint was made of the trial court's refusal to grant appellant's application for continuance. It is contended in said bill that the appellant had used due diligence in having process issued for Lola Montoya and Leon Cardenas. It is alleged in said motion for continuance that he would prove in substance by said absent witnesses that the Mexican called Shorty lived in part of the private residence of the appellant and that the said witnesses had lived with and visited the appellant, and expected to prove that during all of said time the appellant did not sell or manufacture any liquor and the appellant did not know that any one was manufacturing intoxicating liquor or selling same on his premises. There was no affidavit of either of said alleged witnesses attached to appellant's motion for new trial. Conceding that diligence had been shown in order to procure the attendance of said witnesses, we believe that the testimony of said absent witnesses would be nothing more than cumulative of the testimony given by the appellant's wife, daughter, and other relatives on the trial of this case, all of whom in substance testified to the same facts set forth in the application for continuance as to what was expected to be proved by the absent witnesses. In the absence of affidavits of the absent witnesses attached to the motion for new trial, the judicial discretion rests with the trial judge to determine, in passing upon a motion for new trial, whether or not the absent testimony is probably true in view of all the evidence heard during the trial. White et al. v. State, 90 Tex. Cr. R. 584, 236 S. W. 745; Tubb v. State, 109 Tex. Cr. R. 458, 5 S.W.(2d) 150. We are confirmed in our view, after an examination of the testimony heard upon the trial, that the learned trial judge was well within his discretion in refusing a new trial.

There are two bills of exception relating to appellant's objection to the testimony touching the result of the search. The grounds set up were because said testimony had been obtained upon an invalid affidavit for a search warrant. Appellant alleges that the affidavit is void because of indefinite description due to the insufficient facts upon which probable cause could exist. We quote from the affidavit as follows:

"Before me, the undersigned authority, on this day personally appeared H. D. Faust and E. B. Elliston, creditable persons, who, being by me duly sworn, upon their oath depose and say: We have good reason and probable cause to believe and do believe and so believing allege the facts to be that Juan Luera and others, whose names and descriptions are to these affiants unknown, is in possession and control of a certain private dwelling occupied by him as such and the premises appurtenant thereto, situated and described as follows: Lots 11 and 12 in Block 4, B. D., in the City of Dalhart, Dallam County, Texas.

"That in said private house and dwelling and premises appurtenant thereto the said Juan Luera and others whose names and descriptions are to these affiants unknown, sell and manufacture intoxicating liquor and possess for the purpose of sale and to be transported, intoxicating liquor."

The description of the premises in the search warrant does not materially vary from that set forth in the affidavit. The further contention is made that the attempted description of the alleged place to be searched is vague, indefinite, and uncertain, and the affidavit does not show probable cause and grounds for belief. Upon this issue, the affidavit further states that the ...