Smith v. State , 124 Tex. Crim. 163 ( 1933 )

LATTIMORE, Judge.

Conviction for selling intoxicating liquor; punishment, two years in the penitentiary.

We have examined each bill of exception found in the record. The indictment contained two counts, one charging appellant with the selling of intoxicating liquor to Clifford Mears, and the other charging the unlawful possession for the purpose of sale. The jury found' appellant guilty under the first count. Mears testified positively to a sale of whisky to him by the appellant. Appellant did not testify, nor was there any denial of the testimony of Hears.

Appellant has several bills of exception complaining of the search of a business house and surroundings by officers. We are not in accord with the complaints of appellant in this particular, but inasmuch as said testimony was material at the time it was offered as affecting the question of appellant’s guilt of the possession of intoxicating liquor, and in view of the fact that there was no effort made to have the testimony withdrawn from the consideration of the jury in case of a finding upon some other count, we are unable to agree with appellant’s contention. The same thing is true of the complaint of the search of appellant’s residence. The affidavit and search warrant were in all things regular, and what was discovered by the officers at the home of appellant was admissible.

There is complaint of misconduct of the jury, it being set up that at some time during the deliberation upon the case there was a separation of the jury. The court heard testimony not only of the jurors but of the officer who was with them, and the facts show that as the jury were passing down the street by a bank in which one of the jurors worked, he was permitted by the deputy sheriff to step in the bank and get some papers; the officer testifying that he stood at the door and observed all the movements of the juror, and that there was no communication with other parties.

Failing to find any error in the record, the judgment will be affirmed.

Affirmed.