Pierce v. State

• Decision Date: 26 January 1927
• Docket Number: (No. 10580.)
• Citation: 290 S.W. 1095
• Parties: PIERCE v. STATE.
• Court: Texas Court of Criminal Appeals

290 S.W. 1095

PIERCE v. STATE.

(No. 10580.)

Court of Criminal Appeals of Texas.

January 26, 1927.

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

Russell Pierce was convicted of possessing intoxicating liquor for purposes of sale, and he appeals. Affirmed.

H. T. Lyttleton, of Marshall, for appellant.

Sam D. Stinson, State's Atty., of Austin, and Robt. M. Lyles, Asst. State's Atty., of Groesbeck, for the State.

LATTIMORE, J.

Conviction in district court of Harrison county of possessing intoxicating liquor for purposes of sale; punishment, three years in the penitentiary.

Officers having a search warrant went to the place of appellant. As they approached the house, appellant was observed a short distance away. When he discovered the officers, he ran beind the house, which was on a hill, and appellant's movements could be observed by looking underneath the house. The officers said they saw him run back of the house and pick up something, and run to a smokehouse, and apparently place the object under said smokehouse. When the officers got there, they found under the edge of the smokehouse a gallon and a quart of whisky. In the house they found two 50-gallon barrels of mash and a heater, a fire being in the heater. Part of the whisky was in a gallon bucket, and part in a jug and fruit jar. The mash was made of meal, chops, sugar, and water, and the barrels were full. Fermentation was in process in the mash.

There is some testimony that, after the officers discovered the liquor, appellant tried to destroy the containers, and also tried to get one of the officers' pistols. Appellant's stepfather testified that he lived about 300 yards from the house where the officers found the mash and whisky, and that appellant was staying at his house at night. The theory of the defense as made by the testimony of several witnesses, including appellant, was that, if there was any whisky at the house, it was put there by a strange man who was seen, according to the defense witnesses, going toward the house with a tow sack shortly before the officers appeared on the scene.

There are five bills of exception in the record. Bill No. 1 complains of the refusal of the court to suppress testimony before the testimony was offered. Such procedure is unknown to our practice. Foster v. State (Tex. Cr. App.) 282 S. W. 600.

Bill No. 2 complains of the refusal of the court to quash the "affidavit and search warrant" herein. The bill of exceptions is defective. Nothing therein appears showing that the affidavit does not describe the premises with any sufficient accuracy, save appellant's statement to...