Montalbano v. State

• Citation: 34 S.W.2d 1100
• Decision Date: 26 November 1930
• Docket Number: No. 13558.,13558.
• Parties: MONTALBANO v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

34 S.W.2d 1100

MONTALBANO v. STATE.

No. 13558.

Court of Criminal Appeals of Texas.

November 26, 1930.

Rehearing Denied February 4, 1931.

Appeal from Criminal District Court, Harris County; Whit Boyd, Judge.

Sylvester Montalbano was convicted for possession of intoxicating liquor for the purpose of sale, and he appeals.

Affirmed.

Winfree & Weslow, of Houston, for appellant.

O'Brien Stevens, Cr. Dist. Atty., and E. T. Branch, both of Houston, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

MORROW, P. J.

The unlawful possession of intoxicating liquor for the purpose of sale is the offense; penalty, confinement in the penitentiary for one year.

The evidence is sufficient to convict of the offense charged. It was given by an officer who acted under a search warrant.

Notice of appeal was given on the 23d day of November, 1929. The bill of exception appears to have been filed on December 26, 1929. The statute allows no more than thirty days after notice of appeal for filing bills of exceptions, unless the time is extended by an order entered by the trial judge. In the present instance no such order appears. See article 760, C. C. P. The bill of exceptions challenging the legality of the search seems to present no error. The search warrant was verified by the affidavit of two witnesses, and its substance is in accord with article 691, P. C., of this state. Some reference is made by the appellant to section 25 of title 2 of the National Prohibition Act (27 USCA § 39). The form of affidavit prescribed by the federal government is not controlling in the state prohibition laws. The substance of the two, however, are not materially different. See Cornelius on Search & Seizure (2d Ed.) p. 452. Article 727a, C. C. P., as amended by the Acts of the 41st Leg. (1929) 2d Called Session, c. 45, § 1 (Vernon's Ann. C. C. P. art. 727a), renders inadmissible evidence obtained by any officer or other person in violation of the Constitution or laws of the state of Texas, or of the Constitution of the United States of America.

The judgment is affirmed.

HAWKINS, J., absent.

On Motion for Rehearing.

LATTIMORE, J.

If, upon the showing of diligence now made, appellant's single bill of exceptions be considered, and if it be conceded that in 1927, when this indictment was returned, there was a direction in a federal procedure statute to the effect that in cases where search warrants were issued for searches by federal officers the warrant should contain certain things not...