Henderson v. State , 103 Tex. Crim. 502 ( 1926 )

The offense is possession of intoxicating liquor and the punishment is confinement in the penitentiary for one year.

The appellant filed a plea in the lower court asking that the prosecution be abated. The substance of this plea was that the county attorney who was in office when the indictment was returned had agreed with the appellant that he would dismiss this prosecution in consideration of appellant giving the officers of Harrison County information concerning other violations of the law. We think this was not such a contract as is enforceable. The record clearly shows that appellant promised nothing and did nothing that he was not under obligation as a law abiding citizen to do in any event. The record discloses that he merely promised to give information in his possession about violations of the law which were not in any wise connected with the offense with which he was under indictment. Again the record fails to show that any agreement that was made between him and the county attorney was ratified by the Court. Cameron v. State, 22 S.W. 682.

Complaint is made at the court's action in refusing to permit the appellant to prove by the witness Hatley and the witness Jackson that Bob Hawkins told them that he had some whiskey at his house. Appellant contends that as the witness Hawkins lived very close to the appellant and as the liquor in question was found on premises of the appellant but very near the premises of Hawkins that this testimony was admissible as a circumstance to show that Hawkins and not the appellant possessed the whiskey. This contention is without merit. This testimony was hearsay and immaterial. If Hawkins had whiskey at his house we fail to see how this in any manner showed or tended to show that appellant did not possess the whiskey found on the premises under his control.

The evidence in the case is amply sufficient to support the judgment and we think it clear that the court did not err in refusing to give appellant's special instruction No. 2 to the effect that proof alone of the fact that the liquor in question was found by the officers on premises belonging to and occupied by the defendant is not sufficient to justify a conviction of the defendant and no presumption of guilt arises from this fact. This charge was on the weight of the testimony and was properly refused.

The appellant raises here for the first time the proposition that as no search warrant was issued for the search of the appellant's premises in this case that the case should therefore be reversed as the record discloses that his premises were searched and the liquor found thereon. This case was tried on the 26th day of May 1925, and the present search and seizure law did not become effective until June 18, 1925. This complaint is without merit. Bailey Harrison v. State, Decided January 20, 1926.

Finding no error in the record, the judgment is in all things 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