Schaefer v. State

• Decision Date: 22 June 1932
• Docket Number: No. 15272.,15272.
• Citation: 53 S.W.2d 302
• Parties: SCHAEFER v. STATE.
• Court: Texas Court of Criminal Appeals

53 S.W.2d 302

SCHAEFER v. STATE.

No. 15272.

Court of Criminal Appeals of Texas.

June 22, 1932.

Rehearing Denied October 12, 1932.

Second Rehearing Denied October 26, 1932.

Appeal from District Court, Llano County; Carl Runge, Judge.

Edwin Schaefer was convicted of possessing intoxicating liquor for purpose of sale, and he appeals.

Affirmed.

Linden & Linden, of San Antonio, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

HAWKINS, J.

Conviction is for possessing intoxicating liquor for the purpose of sale; punishment being one year in the penitentiary.

Acting under a search warrant, officers went to appellant's home and found in a small rock house (called the "dairy house") near the residence five gallons of peach brandy, two gallons of cherry wine, sixty bottles of "home brew," caps and a capping machine. A chemist who made an analysis of samples of each kind of the liquor found testified that the peach brandy contained 9.6 per cent. of alcohol by volume, the cherry wine 8.8 per cent., and the home brew 3.4 per cent.

It was appellant's contention that under the evidence the "dairy house" was a part of the private residence, and that evidence of what was found by the officers was inadmissible by reason of a claimed defective affidavit upon which the search warrant was predicated. Bills of exception preserving the point are brought forward. We find it unnecessary to discuss the matter on account of the evidence which went into the case from appellant's wife. She admitted the presence of the liquor testified to by the officers, saying it was made by her and appellant. She denied that any of it was kept for the purpose of sale, and said the "home brew" was for her own personal use. The jury was pertinently told that appellant could not be convicted if the liquor in question was intended for medicinal purposes or for home consumption. The same evidence which appellant sought to exclude as coming from the officers having gone into the record from appellant's own witness he is in no position to complain. We cite only a few cases, but they will be found to collate many others. See McLaughlin v. State, 109 Tex. Cr. R. 307, 4 S.W.(2d) 54; Machado v. State, 112 Tex. Cr. R. 538, 17 S.W.(2d) 1060; Stone v. State, 113 Tex. Cr. R. 371, 22 S.W.(2d) 140; Reusch v. State (Tex. Cr. App.) 45 S.W.(2d) 209.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant files an able motion for rehearing in which he reviews to some extent the authorities deemed by him pertinent. The proposition that the illegal reception of testimony will be of no avail to the accused if it appear from the record that the same or similar testimony was admitted before the jury from other sources without objection has been affirmed by this court almost from its creation. We have no doubt as to the soundness of the proposition. The authorities have been reviewed and discussed so often that we deem it unnecessary to again go over same. In Stone v. State, 113 Tex. Cr. R. 371, 22 S.W.(2d) 140, many of the authorities are collated. There was no dispute of the fact that appellant himself drew out of his wife, while on the witness stand as a witness for him, substantially the same facts as to his possession of the intoxicating liquor in question, as was testified to by the officer whose search was admittedly improper.

The motion for rehearing will be overruled.

On Application to File Second Motion for Rehearing.

MORROW, P. J.

Appellant earnestly insists that in the opinions affirming this conviction and overruling the motion for rehearing, this court has by construction annulled the statutory law embraced in article 671, P. C., enacted in 1923. The announcement of this court, speaking through Judge Ramsey, in the case of Wagner v. State, 53 Tex. Cr. R. 306, 109 S. W. 169, decided in 1908, wherein it is said: "It is well settled in this state that the erroneous admission of testimony is not cause for reversal, if the same fact is proven by other testimony not objected to," cites many previous cases. Among them is Walker v. State, 17 Tex. App. 16, in which the rule stated is treated as a sound principle of evidence in the opinion written by Judge Hurt. The principle was again affirmed in the opinion of this court written by Judge Hurt in the case of Carlisle v. State, 37 Tex. Cr. R. 108, see page 112, 38 S. W. 991.

Article 671, P. C., reads thus: "Wherever possession or receipt, or...