Alejandro v. State , 116 Tex. Crim. 325 ( 1930 )

Conviction is for possessing intoxicating liquor for the purpose of sale, punishment being one year in the penitentiary.

The sheriff testified that he went to appellant's house and obtained permission from his wife to search the house and found "one hundred forty bottles of beer, and also twenty gallons of beer in a crock; that seventy bottles were on ice; in the room where the beer was found was a table and chairs and twenty-five or thirty tumblers on the table." The officer testified that the beer was intoxicating. The search was made in the morning. At six o'clock in the afternoon appellant came to the sheriff's office and admitted that he knew it was a violation of the law to sell beer but that he needed the money. Appellant offered no evidence whatever.

When state's counsel asked the officer if appellant's wife gave him permission to search the house appellant objected on the ground that the wife had no right to give such permission because she could not testify against her husband. We have not been favored with a brief from appellant and may not get his viewpoint, but we fail to discern merit in the objection. Pruitt v. State, 2 S.W.2d 856.

The court committed no error in permitting the sheriff to testify what he found in the house as against objection that the things themselves were the best evidence.

We discover no error in the court's instructions.

Bills of exception four and six bring forward complaint at the refusal of requested charges regarding different kinds of beer, alcoholic contents, various ingredients, mixtures, etc. Bill of exception number five complains at the refusal of a special charge to the effect that before a private residence could be searched by permission there must be no misunderstanding between the party giving the permission and the officer making the search. We find no evidence in the record raising an issue to which any of the special charges would be applicable.

Appellant sought a new trial partly upon the ground of newly discovered evidence from his wife. The slightest diligence before or during the trial would have discovered the evidence.

The judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.