McLaughlin v. State
| Decision Date | 15 February 1928 |
| Docket Number | (No. 11286.) |
| Parties | McLAUGHLIN v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Mitchell County; Fritz R. Smith, Judge.
P. H. McLaughlin was convicted of possessing intoxicating liquor for the purpose of sale, and he appeals. Affirmed.
V. Earl Earp, of Sweetwater, and De Witt Bowmer, of Temple, for appellant.
A. A. Dawson, State's Atty., of Austin, for the State.
Conviction is for possessing intoxicating liquor for the purpose of sale. The punishment is two years in the penitentiary.
The search of appellant's house was made under a warrant predicated upon an affidavit based solely upon the "belief" of affiants; there being no statement in the affidavit of the facts or information upon which such belief was founded. Such being the case, objection should have been sustained when the state offered to prove the result of the search. Chapin v. State, 107 Tex. Cr. R. 477, 296 S. W. 1095; Sutton v. State (Tex. Cr. App.) 300 S. W. 639, in which are collated many cases. However, appellant seems to have lost the benefit of his bills by going on the witness stand himself and testifying to every criminative fact which could have been properly excluded as coming from the officers. Some of their testimony was admissible independent of the search warrant. They had watched appellant's house for several nights, had seen numbers of cars going to the house at all times of night, and observed parties coming from the house to the cars with something in sacks. Regardless of a warrant, this testimony was admissible as circumstances indicating that appellant had the liquor for sale. Appellant admitted in his testimony that he had on hand 420 bottles of beer, a 50-gallon barrel in which to make it, and some 200 empty bottles. His only defense was that he was making and had the beer to be used by himself and wife for medicine. This issue was submitted to the jury, who refused to accept appellant's explanation. Having taken the witness stand himself and admitted having in his house practically everything of a criminative character, the officers claimed to have found appellant is in no position to ask for a reversal of the judgment. Parker v. State, 91 Tex. Cr. R. 68, 238 S. W. 943; Scharff v. State, 99 Tex. Cr. R. 605, 271 S. W. 83; Gonzales v. State (Tex. Cr. App.) 299 S. W. 901. We quote from Wagner v. State, 53 Tex. Cr. R. 306, 109 S. W. 169:
Later cases following Wagner are Gurski v. State, 93 Tex. Cr. R. 612, 248 S. W. 353: Osborne v. State, 106 Tex. Cr. R. 310, 292 S. W. 240.
The judgment is affirmed.
On Motion for Rehearing.
Appellant insists that, if his objection was good when made to the testimony of officers as to what they found in his place by a search under a defective warrant, then we erred in holding that the error of such admission was rendered harmless by his thereafter taking the witness stand and affirming as true that the officers found what they said they did on his premises. He cites a number of authorities, all of which we have carefully examined. Dawson v. State, 38 Tex. Cr. R. 14, 40 S. W. 731, Red v. State, 39 Tex. Cr. R. 421, 46 S. W. 408, and Attaway v. State, 41 Tex. Cr. R. 397, 55 S. W. 45, go no further than to hold that the error of the admission of illegal testimony over objection is not rendered harmless because the accused resorted to rebutting evidence to meet, destroy, or explain the effect of the illegal testimony theretofore admitted. We do not regard this as contrary to what we have held in the instant case. Wade v. State, 48 Tex. Cr. R. 512, 90 S. W. 503, merely holds that an accused who objects to illegal testimony does not forfeit his objection by cross-examining the witness from whom the illegal testimony was elicited. We are unable to find any thing in Turman v. State, 50 Tex. Cr. R. 7, 95 S. W. 533, or Clements v. State, 61 Tex. Cr. R. 161, 134 S. W. 728, which has application here at all. Zimmer v. State, 64 Tex. Cr. R. 114, 141 S. W. 781, holds that one who fails to object to illegal testimony given by a witness is not thereby estopped to thereafter object when the same or similar facts are offered from another witness. This has no application. In Moore v. State, 66 Tex. Cr. R. 169, 146 S. W. 184, and Brown v. State, 67 Tex. Cr. R. 543, 150 S. W. 438, are expressions which seem to support appellant's contention. These cases were apparently decided without presentation of the point here under discussion — in fact the principle of law seemingly had in mind and referred to in the Moore Case is the same as that involved in the Dawson, Red, and Attaway Cases, supra. Moore was on trial for burning Pharr's house to enable Pharr to collect insurance thereon. The state put on Watts, who was permitted, over objection, to testify that Pharr's house was insured, and that the policies were at the home office. The bill complaining of the introduction of this secondary evidence was qualified by a statement that the defense put Pharr on the stand, and he testified in chief to the amount of the insurance on said house, the amount of each policy, the date of same, and the value of the property insured. Stating in the opinion that the admission of Watts' testimony was erroneous, and that the error was not cured by the testimony of Pharr, this court, citing no authorities, says that no rule seems better established than the one that, when testimony has been erroneously admitted, and the defendant is thereby called on to meet such testimony, the fact that he does introduce testimony to meet it does not cure the error. The Brown...
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Thomas v. State
...by the fact that the accused sought to meet, destroy, or explain it by the introduction of rebutting evidence. McLaughlin v. State, 109 Tex.Cr.R. 307, 4 S.W.2d 54 (1928); Nicholas v. State, 502 S.W.2d 169 (Tex.Cr.App.1973); Alvarez v. State, 511 S.W.2d 493 (Tex.Cr.App.1973); 5 Tex.Jur.2d, A......
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Martinez v. State, 20163.
...v. State, 110 Tex.Cr.R. 378, 9 S.W. 2d 348; Wagner v. State, 53 Tex.Cr.R. 306, 109 S.W. 169, and cases therein cited; McLaughlin v. State, 109 Tex.Cr.R. 307, 4 S.W.2d 54. The third point in appellant's motion questions the action of the court in overruling a motion for change of venue. The ......
- Lopez v. State
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Moulton v. State
...to or otherwise produces evidence of the same facts, or if such facts are in the record without objection. In McLaughlin v. State, 109 Tex.Cr.R. 307, 4 S.W.2d 54 (1928), where many of the earlier decisions cited by the defendant were discussed, it was said: 'None of those cases, and in fact......
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Table of cases
...S.W.2d 252 (Tex.App.—Waco 1987), §11:57 McKissick v. State , 209 S.W. 3d 205 (Tex.App. [1st Dist.] 2006), Form 7-12 McLaughlin v. State , 4 S.W.2d 54 (Tex.Crim.App. 1928), §11:40 A-10 Texas DWI Manual McMahon v. State , 582 S.W.2d 786 (Tex.Crim.App. 1978), §11:105 Meek v. State , 628 S.W.2d......
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Error Preservation and Appeal
...fact that the defendant “sought to meet, destroy, or explain it by the introduction of rebutting evidence.” [ Id .; McLaughlin v. State , 4 S.W.2d 54 (Tex.Crim.App. 1928); Nicholas v. State , 502 S.W.2d 169 (Tex.Crim.App. 1973).] §11:41 De Garmo v. State Is Overruled in its Entirety In Jaco......
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Table of cases
...S.W.2d 252 (Tex.App.—Waco 1987), §11:57 McKissick v. State , 209 S.W. 3d 205 (Tex.App. [1st Dist.] 2006), Form 7-12 McLaughlin v. State , 4 S.W.2d 54 (Tex.Crim.App. 1928), §11:40 McMahon v. State , 582 S.W.2d 786 (Tex.Crim.App. 1978), §11:105 Meek v. State , 628 S.W.2d 543 (Tex.App.—Fort Wo......
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Error Preservation and Appeal
...fact that the defendant “sought to meet, destroy, or explain it by the introduction of rebutting evidence.” [ Id .; McLaughlin v. State , 4 S.W.2d 54 (Tex.Crim.App. 1928); Nicholas v. State , 502 S.W.2d 169 (Tex.Crim.App. 1973).] §11:41 De Garmo v. State Is Overruled in its Entirety In Jaco......