McPhail v. State, 13043.

• Decision Date: 26 February 1930
• Docket Number: No. 13043.,13043.
• Citation: 26 S.W.2d 218
• Parties: McPHAIL v. STATE.
• Court: Texas Court of Criminal Appeals

26 S.W.2d 218

McPHAIL v. STATE.

No. 13043.

Court of Criminal Appeals of Texas.

February 26, 1930.

Rehearing Denied April 9, 1930.

Commissioners' Decision.

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

D. McPhail was convicted of possessing intoxicating liquor for purpose of sale, and he appeals.

Affirmed.

Art Schlofman, of Dalhart, 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 restaurant and found therein approximately a gallon of whisky. A witness for the state testified that he bought a pint of whisky from appellant shortly before the search was made. Appellant offered no testimony controverting the fact that he had sold liquor to the witness. The officers had a search warrant, which the trial court held to be invalid.

One of the officers testified that when he first went to appellant's restaurant he had no search warrant. He said he told appellant that he wanted to search his house, and that appellant replied: "Go right ahead and search." He testified further that appellant told him he did not need a search warrant, and that he would find a little whisky in his house. However, the officer did not proceed with the search immediately, but sent his associate for a search warrant. The officer remained on the premises. When his associate returned with the warrant they proceeded with the search.

Appellant objected to the testimony of the officers touching the result of the search on the ground they were not authorized to search his place of business without a valid search warrant. Appellant's objection would have been well taken if it had not been for the fact that appellant's language to the officer was specific in favor of a waiver of a search without a warrant. It went further than a mere acquiescence on his part. He expressly stated to the officer that he did not need any search warrant, and that he might go right ahead without one. That one may consent to the search of his premises and thereby waive irregularities in the search warrant or dispense with a search warrant altogether is well settled. Hall v. State, 105 Tex. Cr. R. 365, 288 S. W. 202, 203; Williams v. State (Tex. Cr. App.) 17 S.W.(2d) 56. In Hall's Case, officers went to Hall's premises and informed him that they had a search warrant, Hall said: "You don't need any search warrant. Just go ahead and search anywhere you want to." This court held the language used by Hall sufficient to show a waiver and sustained the action of the trial court in admitting the testimony of the officers, notwithstanding the fact that the search warrant was void. The language used by appellant in the instant case is as specific in favor of a waiver as that used in Hall's Case. We are constrained to sustain the action of the trial court in admitting the testimony.

In his closing argument the district attorney used language as follows: "Gentlement of the jury there is one more thing I want to call your attention to. I want to read you paragraph 7 of the court's charge and I will not comment upon it whatever but just read the charge to you."

After making the foregoing remarks the district attorney read the following paragraph of the court's charge: "You are further instructed that the defendant had the right under the law to go upon the witness stand and testify in his own behalf, but the failure to do so is no evidence of the defendant's guilt and I instruct you that you will not mention, refer to, or take into consideration by mental reservation or otherwise the failure of the defendant to testify in his own behalf as it is no evidence or circumstance as...