Pence v. State

• Decision Date: 07 March 1928
• Docket Number: (No. 11402.)
• Citation: 9 S.W.2d 348
• Parties: PENCE v. STATE.
• Court: Texas Court of Criminal Appeals

9 S.W.2d 348

PENCE v. STATE.

(No. 11402.)

Court of Criminal Appeals of Texas.

March 7, 1928.

Rehearing Denied October 10, 1928.

Commissioners' Decision.

Appeal from District Court, Harrison County; P. O. Beard, Judge.

Homer Pence was convicted of transporting intoxicating liquor, and he appeals. Affirmed.

See, also, 107 Tex. Cr. R. 285, 296 S. W. 542.

Davidson, Blalock & Blalock, of Marshall, for appellant.

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

CHRISTIAN, J.

The offense is transporting intoxicating liquor; the punishment, confinement in the penitentiary for one year.

Appellant was seen by officers driving an automobile on East Bowie street in the town of Marshall. The car was heavily loaded. The officers watched the car until it was lost to view. Later the officers drove out Longview road about 7 or 8 miles and found appellant and his wife at a little schoolhouse eating lunch. They were sitting rear the car appellant had been driving. The car was searched and found to contain 164 quarts of whisky.

Appellant did not testify in his own behalf. Appellant's wife, testifying in behalf of appellant, declared on direct examination that appellant had bought the whisky in question from a man in a Dodge car, that this man removed the whisky from his car to appellant's car, and that appellant did not move his car after the whisky had been placed in it.

The testimony touching the result of the search was objected to on the ground that the officers had no search warrant. The state undertook to show that appellant consented to the search. In view of the fact that appellant's wife testified to appellant's possession of the whisky, it is unnecessary to determine whether or not the search of appellant's car was legal. Where the record shows that the same testimony thus objected to was otherwise introduced by the accused himself, or some other witness, without objection, the accused cannot claim to have been injured by the testimony objected to, even if such testimony was improperly admitted. Gonzales v. State, 108 Tex. Cr. R. 253, 299 S. W. 901; Frey v. State (Tex. Cr. App.) 3 S.W.(2d) 459, opinion handed down on January 25, 1928; Bonilla v. State, 108 Tex. Cr. R. 603, 2 S.W.(2d) 248, opinion handed down on January 25, 1928; McLaughlin v. State (No. 11286) 4 S.W.(2d) 54, opinion handed down February 15, 1928; Sifuentes et al. v. State (No. 11546) 5 S.W.(2d) 144, opinion handed down March 7, 1928.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

HAWKINS, J.

The indictment alleges that appellant transported the liquor in question upon a "public road," without designating any particular road. It has been held that such averment was unnecessary. Tro v. State, 101 Tex. Cr. R. 185, 274 S. W. 634; Anderson v. State, 102 Tex. Cr. R. 183, 277 S. W. 1066. By supplemental brief in connection with his motion for rehearing, appellant urges for the first time that the state failed to support said allegation by proof, and that, having described the offense with unnecessary particularity, the state must prove it as alleged. There is evidence from which the jury could find that appellant had transported the liquor on the "Longview" road. There is no evidence as to the character of said road. However, this seems unimportant in determining the question presented. A witness testified that he saw appellant...