Watson v. State

• Decision Date: 16 May 1928
• Docket Number: (No. 11759.)
• Citation: 7 S.W.2d 586
• Parties: WATSON v. STATE.
• Court: Texas Court of Criminal Appeals

7 S.W.2d 586

WATSON v. STATE.

(No. 11759.)

Court of Criminal Appeals of Texas.

May 16, 1928.

Rehearing Denied June 20, 1928.

Commissioners' Decision.

Appeal from District Court, Rains County; Grover Sellers, Judge.

D. Watson was convicted of possessing intoxicating liquor for the purpose of sale, and he appeals. Affirmed.

Dial & Brim, of Sulphur Springs, for appellant.

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

CHRISTIAN, J.

The offense is possession of intoxicating liquor for the purpose of sale; the punishment, confinement in the penitentiary for two years.

Operating under a search warrant, officers searched appellant's residence and found therein two gallons of whisky. Testifying in his own behalf, appellant admitted the possession and ownership of the whisky, but declared that he was in bad physical condition and used it for medicinal purposes.

It is unnecessary to determine whether the search warrant was legally sufficient. Appellant testified that the whisky belonged to him. Having testified to the same facts as stated by the officers relative to the quantity of whisky he possessed, appellant cannot now claim to have been injured by the testimony of the officers, even if such testimony was improperly admitted. Frey v. State (Tex. Cr. App.) 3 S.W.(2d) 459; McLaughlin v. State, 4 S.W.(2d) 54, opinion No. 11286, delivered February 15, 1928; Sifuentes et al. v. State, 5 S.W.(2d) 144, opinion No. 11546, delivered March 7, 1928; Gonzales v. State (Tex. Cr. App.) 299 S. W. 901; Wagner v. State, 53 Tex. Cr. R. 306, 109 S. W. 169.

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 Appellant's Motion for Rehearing.

CHRISTIAN, J.

In an able motion for rehearing, appellant asserts that we were in error in holding that, inasmuch as he testified to the same facts related by the officers, he could not claim to have been injured by their testimony, even if the court improperly admitted such testimony. Appellant contends that he was injured by the illegal testimony of the officers because of the following facts:

(1) Appellant testified that he possessed the whisky for medicinal purposes, and denied that he stated to one of the officers that he had been selling whisky.

(2) One of the officers testified in response to a question by the district attorney that appellant stated to him at the time the search was made that he had been selling whisky.

(3) The affidavit for the search warrant and the search warrant were introduced in evidence by the state.

In order to determine whether appellant's contention is meritorious, we have again reviewed the record in the light of appellant's four bills of exception.

Bill of exception No. 1 was taken to the action of the trial court in refusing to permit appellant to ask the sheriff, in effect, if the affidavit for the search warrant was not based on mere suspicion. In short, the bill shows that appellant excepted to the action of the court in refusing to permit him to elicit from the witness the information or knowledge of which he was possessed at the time he made the affidavit. Bill of exception No. 4 is concerned with the identical complaint brought forward in bill No. 1, except that appellant endeavored to question the second affiant concerning any knowledge or information he had showing "probable cause" for making the affidavit for a search warrant. In neither of said bills is complaint made of the action of the court in permitting the state to introduce in evidence the affidavit and search warrant, and to prove that appellant stated to one of the officers at the time of the search that he had been selling whisky. Hence, in so far as bills of exception Nos. 1 and 4 reflect the matter, the affidavit, search warrant, and declaration of appellant were admitted in evidence without objection.

Bill of exception No. 3 presents the following occurrence: When the sheriff undertook to give testimony touching the result of the search, appellant objected to his testimony on the ground that the search warrant was invalid. The objection was overruled, and, as recited in the bill, the witness testified as follows:

"I stayed on the outside with Mr. Watson and his son, and sent the deputies in the house to make the search. McTaggart went in the house; I didn't go in there. I had a search warrant. Mr. McTaggart brought some things back; I am pretty sure he brought two half gallons of whisky in a sack first, then George Hughes brought a quart, and one or the other brought a quart or half gallon, I don't remember which. In all, two gallons of whisky were found there. I examined it and know it was whisky."

The bill recites that:

Appellant "excepted to the ruling of the court in admitting said testimony, and thereafter, at the conclusion of the testimony offered by the state and by the defendant, the defendant moved the court to withdraw from the consideration of the jury the evidence of said witness with reference to what was found at the place of the search. * * *"

It is noted that the testimony complained of contains no statement to the effect that appellant stated at the time of the search that he had been selling whisky. Again, as far as the bill under consideration reflects appellant's complaint, the affidavit, search warrant, and declaration of appellant were received in evidence without objection.

Bill of exception No. 6 reveals that appellant objected to the testimony of the deputy sheriff for the reason stated in bill of exception No. 3. The testimony objected to, as recited in the bill, is as follows:

"I went in the house and searched the house, and found three half gallons and two quarts of liquor, or whisky, and I got it and brought it back to Emory. I found the whisky in a little side room on the north side on the ell of the house — a little side room on the north side. The porch I mentioned was on the south side of the house, and the side room was on the north side of the ell. There was two half gallons and two quarts of whisky in a little pasteboard box, and another half gallon in a heater — stove — there in the side room; two quarts of the whisky were open, and there was two half gallons in a tow sack; by "open" I...