Villareal v. State

• Decision Date: 24 April 1929
• Docket Number: (No. 12495.)
• Citation: 21 S.W.2d 739
• Parties: VILLAREAL v. STATE.
• Court: Texas Court of Criminal Appeals

21 S.W.2d 739

VILLAREAL v. STATE.

(No. 12495.)

Court of Criminal Appeals of Texas.

April 24, 1929.

Rehearing Denied December 4, 1929.

Appeal from Criminal District Court, Nueces County: A. W. Cunningham, Judge.

Ynes Villareal was convicted for possessing stills, mash, and equipment for purpose of manufacturing intoxicating liquor, and he appeals. Affirmed.

H. R. Sutherland and I. M. Singer, both of Corpus Christi, for appellant.

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

LATTIMORE, J.

Conviction for possessing stills, mash, and equipment for the purpose of manufacturing intoxicating liquor; punishment, one year in the penitentiary.

Upon search of appellant's premises, officers found a quantity of intoxicating liquor in an outhouse; and in some haystacks they found two stills.

The sufficiency of the affidavit for search warrant was attacked. It was in the usual form and contained the following statement: "It has been reported to us (affiants) that a distillery was seen at above described place, said distillery being in operation on the 10—18—28." This seems in substantial accord with the affidavit held sufficient in Rozner v. State, 109 Tex. Cr. R. 127, 3 S.W.(2d) 441. In the same bill of exceptions complaining of the affidavit, complaint is made also of the testimony given by witness McAlister as to what was found by the officers upon said search, which was also objected to upon the ground that the premises described in the affidavit and search warrant were not those actually searched, and about which the witnesses testified. To make this a good objection, the truth of its averment should appear from the bill of exceptions itself. Davis v. State, 14 Tex. App. 645; Smith v. State, 90 Tex. Cr. R. 24, 232 S. W. 497; Rippey v. State, 86 Tex. Cr. R. 539, 219 S. W. 463; Wilson v. State, 87 Tex. Cr. R. 538, 223 S. W. 217; Viley v. State, 92 Tex. Cr. R. 395, 244 S. W. 538; Sparks v. State, 100 Tex. Cr. R. 553, 271 S. W. 631. In the bill referred to it is stated that the testimony of the officers "was objected to by the defendant upon the following grounds, to wit," which is followed by a statement of three grounds of objection in as many paragraphs. Whether the incriminative evidence was found upon premises other than those described in the search warrant appears nowhere certified to as a fact in said bill, but is merely stated as grounds of objection. The testimony of the officer is set out in each bill, but nowhere in same does he state that the stills were found on premises other than those described in the warrant. The testimony set out in the bills of exception seems to indicate to the contrary. Said two bills under discussion further complain that the search warrant was served and returned by a policeman of the city of Corpus Christi, it being insisted that he was not entitled to act as a peace officer outside of said city. The record discloses that the warrant was addressed to the sheriff, or any constable, peace officer, etc. The sheriff of the county was with said policeman and participated in the search. We do not concern ourselves with who made the return upon the warrant, as such question cuts no figure in determining the admissibility of the evidence of the officers as to what they found on appellant's premises by means of said search. The sheriff testified to the things found by the party.

Bill of exceptions No. 3 sets out substantially the same objections made to the testimony of the sheriff, as is contained in the first and second bills objecting to the testimony of the policeman, Mr. McAlister.

When the jury came into court they handed in the following verdict: "We, the jury, find the defendant Ynez Villareal, guilty of the second account of unlawfully having in his possession certain stills, mash and materials and devices for the purpose of manufacturing liquors and assess his punishment at one year in the penitentiary." The trial judge made some changes in the form of the verdict so that it read as follows: "We, the jury, find the defendant, Ynez Villareal, guilty on the second count...