Buchanan v. State , 104 Tex. Crim. 612 ( 1926 )

BAKER, Judge.

Appellant was convicted in the District Court of Upshur County for the unlawful possession of intoxicating liquor, and his punishment assessed at three years in the penitentiary.

The record discloses that the officers obtained a search warrant to search the premises of the appellant, and found on the premises belonging to one Collier, about 85 yards from appellant’s residence, a five-gallon keg of whiskey, and further off on said Collier’s premises found several barrels which had contained mash, and places near thereby where the state’s witnesses contended whiskey had been made, and what the witnesses denominated “still sites”; that near where the keg of whiskey was found there were wagon tracks leading into the public road, and leading from the public road into the lot of, and near the residence of the appellant; and that while the officers were searching the premises of the appellant, he was observed coming through the woods to his residence, and it was discovered thereafter that he was armed with a pistol. The state’s witness King testified that, on the day following the search, the appellant told him the officers had raided him, and had found some of his whiskey, and that, had it not been for his wife, he would have killed the deputy sheriff Hill. The appellant denied any connection with the whiskey in question, and denied that he told said King that, if it had not been for his wife, he would have killed said deputy.

The appellant in his brief presents three propositions for a reversal of this case: First, it was error for the court to permit the state to prove that the officers obtained a search warrant for the purpose of searching his premises; second, it was error for the court to permit the state to prove that he had a pistol during the time that the search was being made; and third, that the. evidence is insufficient to support the verdict.

In support of the first proposition the appellant urges that the court erred in permitting the state to prove, over his objection, that a search warrant was obtained, because it would indicate and lead the jury to believe that the officers in issuing and securing said search warrant were of the opinion that the appellant was guilty of violating the law and was a bootlegger, and the admission of such testimony would of necessity be very prejudicial to his defense. We are unable to persuade ourselves into believing that the admission of this testimony was error.

Upon the second proposition, the appellant insists that the court, in permitting the state to prove that appellant was armed with a pistol, was in effect proving extraneous offenses, which was very prejudicial to his defense. It occurs to us that the pistol being discovered on the appellant at the time of searching his premises, it was a part of the res gestae of that transaction, and in view of the fact that the evidence of the state showed that the appellant stated that he would have killed the deputy sheriff at said time if it had not been for his wife, taking into consideration all the facts and circumstances surrounding the case, and the state having to rely for a conviction largely on circumstantial evidence, we are unable to reach the conclusion that this testimony was inadmissible.

As to the appellant’s contention that the evidence is insufficient to support the conviction, we have reached the conclusion that we would not be justified in holding, after a careful examination of all the facts and circumstances surrounding this case, in connection with the admission and statement made by the appellant to the witness King that it was his whiskey, that the jury was unauthorized in deciding the issues raised by the evidence in favor of the state and against the appellant.

For the reasons above stated we are of the opinion that the judgment of the trial court should in all things be affirmed, and it is accordingly so ordered.

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.