Pence v. State , 110 Tex. Crim. 378 ( 1928 )

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 seven or eight miles and found appellant and his wife at a little school house eating lunch. They were sitting near the car appellant had been driving. The car was searched and found to contain 164 quarts of whiskey.

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 whiskey in question from a man in a Dodge car; that this man removed the whiskey from his car to appellant's car and that appellant did not move his car after the whiskey 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 whiskey, 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, 295 S.W. 901; Frey v. State, Opinion handed down on January 25th, 1928; Bonilla v. State, Opinion handed down on January 25th, 1928; McLaughlin v. State, Number 11,286, Opinion handed down February 15th, 1928; Sifuentes et al. v. State, Number 11,546, Opinion handed down March 7th, 1928.

The judgment is affirmed.

Affirmed.

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.