MacHado v. State , 112 Tex. Crim. 538 ( 1929 )

Appellant seeks a rehearing on the ground that there was no probable cause for the search of his automobile, and that hence the search was illegal, and consequently the testimony of the officer as to his finding in appellant's car a gallon of whisky was inadmissible. If appellant's contention be sound that the testimony failed to sufficiently show probable cause, — still it appearing that appellant admitted under oath that he had whisky in his car on the occasion referred to, which was found by the officer, and such sworn admission having been introduced in evidence before the jury on the trial in this case, this fact would render harmless the error, if any, of the admission of the testimony of the officer.

During the trial appellant put in evidence before the jury his own sworn motion made in this case on the same day as the trial, for the return to him of the whisky found by the officer in his car on the occasion which formed the basis for this prosecution. In said motion and under oath appellant stated that G. M. Allen, Sheriff of Hays county, did on the 14th day of April, 1925, search appellant's automobile on the streets of San Marcos, Texas, and did take from said car a gallon of whisky which was in possession of appellant at the time. To this testimony the State made no objection. If then the admission of the testimony of the officer was erroneous, still the rule is too well settled for dispute that this case should not be reversed for the admission of such testimony when same is in the record from some other source. As said in McLaughlin v. State, 109 Tex.Crim. Rep., quoting from Wagner v. State, 53 Tex.Crim. Rep.:

"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. 103. "

"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."

Other cases affirming the rule are Bonilla v. State, 2 S.W.2d 248; Duncan v. State, 13 S.W.2d 703; Houston v. State,16 S.W.2d 120; Spain v. State, 15 S.W.2d 647, which latter case collates many authorities. In the opinion in the case last referred to we said: "Nothing can be sounder than the proposition that the erroneous admission of evidence is harmless when the same evidence in substance is brought before the jury without objection." That such would be the legal effect of proof of the confession of the accused, or of his statements that he had the whisky in his possession in said car, would not seem debatable. In this condition of the record the error of the admission of the officers testimony, if any, would be harmless.

The motion for rehearing is overruled.

Overruled.