Gentry v. State , 105 Tex. Crim. 629 ( 1926 )

MORROW, Presiding Judge.

The possession of equipment for the manufacture of intoxicating liquor is the offense, punishment fixed at confinement in the penitentiary for one year.

The evidence is definite and conclusive to the point that the appellant possessed a still, mash and .other apparatus for the manufacture of intoxicating liquor.

Against the indictment appellant urges the same matters that are presented by him in the companion case, No. 10000, this day decided. A discussion of the point raised and citation of authorities therein and the conclusion reached are applicable to the present contention. For the reasons there stated the objection to the indictment is overruled.

Some special charges complain of the failure of the court to submit a special plea of former conviction, but we fail to find any evidence upon the subject.

Bill of exceptions No. 2 reflects the action of the court upon a preliminary motion made by the appellant to suppress the evidence of certain officers who, it is charged in the motion, searched his premises without legal authority and thereby possessed criminating facts which were used against him upon the trial. The procedure attempted is not recognized as a practice applicable to our jurisprudence. The explanation of the bill seems to eliminate the question, but aside from that, the proper time to oppose the introduction of the testimony which the accused deems inadmissible against him is when it is offered. If proffered testimony against him be admitted over his objection, he can invoke a review of the action of the court by preserving a record of the matter in a bill of exceptions. In the' present case there seems to have been no exception, to the introduction of the testimony. The action of the court in failing to sustain the preliminary motion raises no question for review.

The judgment is affirmed.

Affirmed.