McLaughlin v. State , 109 Tex. Crim. 307 ( 1928 )

Conviction is for possessing intoxicating liquor for the purpose of sale. The punishment is two years in the penitentiary.

The search of appellant's house was made under a warrant predicated upon an affidavit based solely upon the "belief" of affiants, there being no statement in the affidavit of the facts or information upon which such belief was founded. Such being the case objection should have been sustained when the state offered to prove the result of the search. Chapin v. State, 107 Tex.Crim. Rep., 296 S.W. 1095; Sutton v. State,300 S.W. 639, in which are collated many cases. However, appellant seems to have lost the benefit of his bills by going on the witness stand himself and testifying to every criminative fact which could have been properly excluded as coming from the officers. Some of their testimony was admissible independent of the search warrant. They had watched appellant's house for several nights; had seen numbers of cars going to the house at all times of night and observed parties coming from the house to the cars with something in sacks. Regardless of a warrant this testimony was admissible as circumstances indicating that appellant had the liquor for sale. Appellant admitted in his testimony that he had on hand 420 bottles of beer, a 50-gallon barrel in which to make it, and some 200 empty bottles. His only defense was that he was making and had the beer to be used by himself and wife for medicine. This issue was submitted to the jury who refused to accept appellant's explanation. Having taken the witness stand himself and admitted having in his house practically everything of a criminative character, the officers claimed to have found appellant is in no position to ask for a reversal of the judgment. Parker v. State, 91 Tex.Crim. Rep., 238 S.W. 943; Scharff v. State, 99 Tex.Crim. Rep., 271 S.W. 83; Gonzales v. State (Tex. Cr.), 299 S.W. 901. We quote from Wagner v. State, 53 Tex.Crim. Rep., 109 S.W. 169:

"It is well settled in this state that the erroneous admission of testimony is not cause for reversal if the same fact is proven by other testimony not objected to. See Rogers v. State, 26 Tex.Crim. App. 404; Walker v. State, 17 Tex.Crim. App. 16; Johnson v. State, 26 S.W. 504; Stephens v. State, 26 S.W. 728; Logan v. State, 17 Tex.Crim. App. 50; West v. State, 2 Tex.Crim. App. 460, and Carlisle v. State, 37 Tex. Crim. 108. "

Later cases following Wagner are Gurski v. State, 93 Tex. Crim. 612, 248 S.W. 353; Osborne v. State, 106 S.W. 310,292 S.W. 240.

The judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.