Hartless v. State , 121 Tex. Crim. 181 ( 1932 )

Conviction for possessing intoxicating liquor for purposes of sale; punishment, two years in the penitentiary.

Appellant's residence was searched by officers and nine half-gallon jars of whisky found therein. The affidavit for search warrant sets out that the makers thereof had been recently informed by two credible persons that each of them upon separate occasions had visited the described residence of appellant and purchased intoxicating liquor from him; that said purchases had been recently made; that appellant said to said parties that he was never out of whisky and they could buy it from him at any time. This affords sufficient ground for the issuance of the search warrant. Loftin v. State, 116 Tex.Crim. Rep., 33 S.W.2d 1071. The magistrate had judicial discretion in the matter, the exercise of which will not be disturbed by us. Bird v. State, 110 Tex. Crim. 99,7 S.W.2d 953; Piper v. State, 116 Texas Cirm. Rep., 378, 34 S.W.2d 284.

Appellant did not testify. His wife swore that the whisky, most of which was found in a secret, built-in closet, was hers and had by her for medicine. She was supported by a doctor who testified that while he had never written a prescription for whisky, he had prescribed the use of whisky as good for Mrs. Hartless at certain times, and that it was necessary for her to use it. The jury were told in the charge of the court that if they found from the evidence, or had a reasonable doubt thereof, that the whisky found by the officers was possessed for medicinal purposes, they should acquit. Mrs. Hartless testified that she used about a pint of whisky every three months as medicine, and admitted on cross-examination that at this rate she had enough whisky on hand to last her nine years. We do not think the verdict without support in the testimony.

Appellant asked for a continuance because of the absence of a witness by whom he expected to prove that said witness was a professional nurse, and that she lived near appellant at the time the liquor in question was found in his home, and that she would further testify that "said liquor at such time was being used by defendant's wife under the direction of witness, as a medicine * * * and that the alleged intoxicating liquor was constantly kept on hand by appellant's wife for medicine, as directed by Dr. C. G. Rogers." This was a subsequent application, and appears fatally defective in failing to allege that the absence of said witness was neither by the procurement nor consent of appellant. Woods v. State, 115 Tex. Crim. 373,28 S.W.2d 554. We note further, however, that the affidavit of the absent witness as attached to appellant's motion for new trial, which was controverted by the state, was contradicted in some very material matters by another affidavit made by the same witness which was attached to the state's traverse. In the latter affidavit the witness affirmed that she had waited only twice upon appellant's wife prior to the time of the search of his house by said officers. She stated that on each of said two occasions she had administered whisky to appellant's wife. It is stated that on each of said two occasions she had administered whisky to appellant's wife. It is stated in the affidavit that on one of these occasions she asked appellant if he had whisky in the house, and he informed her that he did and got her some, and that on another occasion appellant's wife told witness where the whisky was and she got it. The affidavit quite positively states that the witness knew nothing about the whisky that was in the house at the time the officers searched same, eiher as to its quantity or ownership. In so far as the use of the testimony of this witness to show that appellant's wife used whisky for medicine, it would be but cumulative of that of Dr. Rogers, who testified to this fact. The overruling of a second application for continuance sought to obtain testimony which is cumulative, is not error. Ruffin v. State, 107 Tex.Crim. Rep.,298 S.W. 287; Walker v. State, 105 Tex.Crim. Rep.,287 S.W. 497; Flores v. State, 116 Tex.Crim. Rep., 32 S.W.2d 858; Wiley v. State, 117 Tex.Crim. Rep., 36 S.W.2d 495.

No reversible error appearing, the judgment will be affirmed.

Affirmed.

ON MOTION FOR REHEARING.