Fisher v. State , 107 Tex. Crim. 383 ( 1927 )

MORROW, Presiding Judge. —

The possession of intoxicating liquor for the purpose of sale is the offense; punishment fixed at confinement in the penitentiary for a period of two years.

Allen Johnson, a deputy sheriff and four other officers, searched the tent occupied by the appellant in which they discovered a quantity of corn whiskey and “choc beer.” There was no one present, but the appellant, who declared that the liquor belonged to him.

We find six bills of exceptions in the record.

In bill No. 1 the sufficiency of the search warrant is challenged because it is indefinite in describing the person and place, and because it was based upon an affidavit upon information and belief alone, accompanied by no facts. Touching the bill, however, we find ourselves embarrassed because neither the affidavit nor the search warrant is set out in the bill, nor is the substance of them given. The bill is directed entirely to criticisms, that is, objections made.

Bill No. 2 is a complaint of the overruling of the application for a continuance to secure the testimony of the appellant’s wife, who it is charged was in the State of Colorado for her health, having gone there some six days before the arrest was made. The materiality of the testimony is questioned for the reason that in the appellant’s possession-at the time of his arrest there was found a quantity of intoxicating liquor of which he, at the time, declared himself the owner.

Bill No. 3 preserves an objection to the testimony of the officers touching the result of the search, based upon the ground that the affidavit for the search warrant was defective in that it was based upon information and belief and fails to set out the facts upon which the belief was founded. This bill, however, like bill No. 1, consists merely of objections to the testimony based upon claimed defects in the affidavit, and the warrant, and fails to give either in detail or substance the contents of either. It is necessary that the facts upon which the criticisms of the action of the court is based be brought forward in a bill of exceptions under the certificate of the trial judge.

In bill No. 4 complaint is made of the receipt in evidence of the declarations of the appellant at the time the whiskey was discovered, in which he said that the whiskey found belonged to him; that he had sold but three pints; that he was trying to get on his feet; that he would like to fix it up with the officers as he did not want to go to jail; that he got the whiskey from a man from Colorado or New Mexico. To the receipt of this testimony the objection was urged that the appellant, while not under arrest,' was under restraint and practically in custody, and that its receipt was inhibited by the confession statute. If we properly comprehend the matter, however, it was res gestae.

In bill No. 6 there is complaint of the introduction in evidence of an affidavit made by O. L. Thorp and A. S. Johnson, charging on information and belief that an unknown person in a designated place possessed intoxicating liquor for the purpose of sale. The bill recites that this affidavit was introduced in evidence. Objection was urged against it that it was hearsay.

In view of the testimony, which is undisputed, showing the possession of a quantity of intoxicating liquor for the purpose of sale, the mere fact that an affidavit charging that to be true was hearsay would not warrant a reversal of the judgment. However, as qualified, the bill shows that the affidavit was not introduced in evidence before the jury but solely for inspection by the court. The jury knew nothing of the contents of the document.

The judgment is affirmed.

Affirmed.