Cothran v. State , 143 Tex. Crim. 570 ( 1942 )

The unlawful possession of whiskey for the purpose of sale in a dry area is the offense; the punishment, a fine of $150.00.

It was agreed that San Saba County was a dry area within the meaning of the Texas Liquor Control Act. (Art. 666-23, Vernon's Annotated Penal Code).

Under authority of a search warrant, the Sheriff of San Saba County, accompanied by an inspector of the Texas Liquor Control Board, made a search of appellant's residence and found therein nine pints of whiskey. Under the prima-facie evidence rule (Art. 666-23a, Vernon's Annotated Penal Code), the jury was warranted in finding appellant guilty as charged.

Appellant did not testify as a witness in his own behalf, nor did he offer any affirmative defensive testimony. No objection was made to the testimony of the officers as to the result of the search of the residence.

Appellant's sole complaint is the trial court's failure to sustain his motion to quash the search warrant. The motion was properly overruled. The proper procedure, in this State, for testing the validity of a search warrant is to object to the introduction of the evidence obtained as a result thereof. Foster v. State, 282 S.W. 600, 104 Tex.Crim. R.; Raymond v. State, 291 S.W. 251, 106 Tex.Crim. R.; Buchanan v. State,298 S.W. 569, 107 Tex.Crim. R.; Miller v. State, 150 S.W.2d 1042; Harkey v. State, 150 S.W.2d 808.

The judgment of the trial court is 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 APPELLANT'S MOTION FOR REHEARING.